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85–885 PDF 2003

S. HRG. 107–890

THE ENHANCED BORDER SECURITY

AND VISA ENTRY REFORM ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

APRIL 12, 2002

Serial No. J–107–71

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

SUBCOMMITTEE ON IMMIGRATION

EDWARD M. KENNEDY, Massachusetts, Chairman 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

SAM BROWNBACK, Kansas 

ARLEN SPECTER, Pennsylvania 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

MELODY BARNES, Majority Chief Counsel 

STUART ANDERSON, Minority Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 3

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 8

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 44

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 1

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 3

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 45

WITNESSES 

Byrd, Hon. Robert C., a U.S. Senator from the State of West Virginia .............. 27

Salamone, MaryEllen, Director, Families of September 11, Inc., North 

Caldwell, New Jersey ........................................................................................... 4

Walker, Kathleen Campbell, American Immigration Lawyers Association, El 

Paso, Texas ........................................................................................................... 9

SUBMISSIONS FOR THE RECORD 

Air Crash Victims Families Group, Ridgewood, New Jersey, statement ............ 47

Alliance for International Educational and Cultural Exchange, Michael 

McCarry, Executive Director, Washington, D.C., letter .................................... 49

American Civil Liberties Union, Timothy H. Edgar, Legislative Counsel, 

Washington, D.C., statement .............................................................................. 50

American Federation of Government Employees, AFL-CIO, Beth Moten, Legislative Director, Washington, D.C., statement ................................................. 55

American Immigration Lawyers Association, Church World Service, Episcopal 

Migration Ministries, Hebrew Immigrant Aid Society, Immigration and Refugee Services of America, Institute of International Law and Economic 

Development, Leadership Conference for Civil Rights, Lutheran Immigration and Refugee Services, National Association of Latino Elected and Appointed Officials, National Council of La Raza, National Immigration 

Forum, joint statement ........................................................................................ 58

Americans for Better Borders, Washington, D.C., letter ...................................... 56

Biometric Foundation, M. Paul Collier, Washington, D.C., statement and 

attachment ............................................................................................................ 59

Department of Commerce, National Institute of Standards and Technology, 

Arden L. Bement, Jr., Director, statement ........................................................ 63

Families of EgyptAir 990, Inc., James A. Brokaw II, President, Portage, 

Indiana, letter ....................................................................................................... 69

Families of September 11, MaryEllen Salamone, Director, Great Falls, Virginia, letter ........................................................................................................... 70

Fraternal Order of Police, Steve Young, National President, Washington, 

D.C., statement .................................................................................................... 71

International Biometric Industry Association, John E. Siedlarz, Chairman, 

Washington, D.C., letter ...................................................................................... 75

NAFSA: Association of International Educators, Marlene M. Johnson, Executive Director and CEO, Washington, D.C., letter .............................................. 76

National Immigration and Naturalization Service Council, Charles J. Murphy, 

President, Washington, D.C., letter .................................................................... 77

Travel Industry Association of America, Washington, D.C., statement .............. 78

U.S. Chamber of Commerce, R. Bruce Josten, Executive Vice President, Government Affairs, Washington, D.C., letter ......................................................... 79

(1)

THE ENHANCED BORDER SECURITY AND 

VISA ENTRY REFORM ACT 

FRIDAY, APRIL 12, 2002

U.S. SENATE, 

SUBCOMMITTEE ON IMMIGRATION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The committee met, pursuant to notice, at 9:00 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Edward M. Kennedy 

(chairman of the subcommittee) presiding. 

Present: Senators Kennedy, Feinstein, Cantwell, Brownback, and 

Kyl. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Chairman KENNEDY. We will come to order. I am pleased to hold 

this hearing with my friend and colleague, Senator Kyl, and others 

who will be joining with us on the Enhanced Border Security and 

Visa Entry Reform Act. Senator Brownback, Senator Feinstein, 

Senator Kyl, and I worked together over many months to create a 

bipartisan response to the national security challenges that we 

face. 

This is the second border security hearing we have held in this 

subcommittee. Senator Feinstein and Senator Kyl have held hearings in the Technology Subcommittee to address many of these 

issues. This important legislation passed the House twice and is 

supported by 60 Senators. The bill strengthens the security of our 

borders, improves our ability to screen foreign nationals, and enhances our ability to deter potential terrorists. It is long past time 

that the Senate pass this important legislation. 

The terrorist attacks and INS’s recent action notifying flight 

schools that visas were approved for two of the hijackers clearly 

demonstrate that there is an urgent need to close the loopholes in 

our immigration system. We must enhance intelligence and technology capabilities, strengthen training programs for border officials, Foreign Service officers, and improve the monitoring of foreign nationals already in the United States. 

The USA PATRIOT Act and the airport security bill are important steps in the efforts to improve national security, but further 

action is needed and this legislation is a critical part of our effort 

to strengthen the security of our borders, enhance our ability to 

prevent future terrorist attacks, while also reaffirming our tradition as a nation of immigrants. 

2

We cannot delay any longer in passing this critical legislation. 

Some have suggested that we wait to act on this bill until after we 

pass legislation to restructure the Immigration and Naturalization 

Service, but the many important reforms that this bill requires 

need to be enacted regardless of how our agencies are organized. 

These changes cannot wait for bureaucratic arrangements to be resolved. As we have seen, the risks are too great. 

I look forward to the testimony of our witnesses and to the Senate passage of this legislation in the very near future. 

[The prepared statement of Senator Kennedy follows:]

STATEMENT OF SENATOR EDWARD M. KENNEDY

I’m pleased to hold this hearing on the Enhanced Border Security and Visa Entry 

Reform Act. Senator Brownback, Senator Feinstein, Senator Kyl and I worked together over many months to create a bipartisan response to the national security 

challenges we face. 

This is the second hearing we’ve held in this Subcommittee on the issue of border 

security, and Senator Feinstein and Senator Kyl have held hearings in the Technology Subcommittee to address many of these issues as well. This important legislation passed the House twice and is supported by 60 Senators. The bill strengthens 

the security of our borders, improves our ability to screen foreign nationals, and enhances our ability to deter potential terrorists. It’s long past time that the Senate 

pass this important legislation. 

The terrorist attacks—and INS’s recent action notifying flight schools that visas 

were approved for two of the hijackers—clearly demonstrate that there is an urgent 

need to close the loopholes in our immigration system. We must enhance intelligence and technology capabilities, strengthen training programs for border officials 

and foreign service officers, and improve the monitoring of foreign nations already 

in the United States. 

In strengthening security at our borders, we must also safeguard the unobstructed 

entry of the more than 31 million persons who enter the U.S. legally each year as 

visitors, students, and temporary workers. Many others cross our borders from Canada and Mexico to conduct daily business or visit close family members. 

We also must live up to our history and heritage as a nation of immigrants. Continued immigration is part of our national well-being, our identity as a nation, and 

our strength in today’s global economy. In defending America, we are also defending 

the fundamental constitutional principles that have made America strong in the 

past and will make us even stronger in the future. 

Legislation must strike a careful balance between protecting civil liberties and 

providing the means for law enforcement to identify, apprehend and detain potential 

terrorists. It makes no sense to enact reforms that severely limit immigration into 

the United States. ‘‘Fortress America,’’ even if it could be achieved, is an inadequate 

and ineffective response to the terrorist threat. The Enhanced Border Security and 

Visa Entry Reform Act strikes that balance. 

We can’t delay any longer in passing this critical legislation. Some have suggested 

that we wait to act on this bill until after we’ve passed legislation to restructure 

the Immigration and Naturalization Service. But the many important goals of this 

bill, including developing an interoperable data system to give immigration and consular officers access to relevant law enforcement and intelligence information, requiring that biometric identifiers be included in travel documents, and strengthening the training of consular officers and immigration inspectors, are important reforms that need to be enacted, regardless of how our agencies are organized. The 

reforms that this bill requires cannot wait for bureaucratic arrangements to be resolved. As we’ve seen, the risks are too great. 

The USA Patriot Act and the airport security bill are important steps in the effort 

to improve national security, but further action is needed. This legislation is a critical part of our effort to strengthen the security of our borders and enhance our ability to prevent future terrorist attacks, while also reaffirming our tradition as a nation of immigrants. It has broad bi-partisan support, and is supported by a variety 

of organizations, including the U.S. Chamber of Commerce, the International Biometric Industry Association, Americans for Better Borders, the National Immigration and Naturalization Service Council/AFGE, the American Federation of Government Employees, the Association of International Educators (NAFSA), the American 

Immigration Lawyers Association, the Leadership Council for Civil Rights, National 

Council of La Raza, and the National Immigration Forum. 

3

I look forward to the testimony of our witnesses, and I hope the Senate acts favorably on this legislation in the near future.

Chairman KENNEDY. Senator Brownback. 

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR 

FROM THE STATE OF KANSAS 

Senator BROWNBACK. Mr. Chairman, thank you very much for 

holding this important hearing. I, too, agree that it is time that we 

pass this very important, needed legislation. We were close to passing it late last year at the waning hours of the session. We did not 

get it through at that time. It is imperative that we get it through 

now. 

Let me say first, Mr. Chairman, how grateful I am to you and 

to Senator Kyl and Senator Feinstein for the opportunity to work 

with you on this bill. Together, I think we have crafted an excellent 

bill, one that clearly and thoroughly serves the best interest of the 

public. For all the technical language in this bill, it distills down 

to one simple precept: Protect our country, our communities, our 

children from future terrorist attacks. I am proud to work with all 

three of you on this project of great importance and great integrity. 

I am delighted we are having this hearing today to discuss some 

of the ins and outs and the needs within this bill. 

I know that it needs not be said between the four of us, but I 

want the record to reflect that this legislation is not the creature 

of hurried or rash deliberation. Far from it. This bill was carefully 

vetted with our colleagues in the Senate before its introduction last 

November and it was carefully tweaked in bicameral negotiations 

before its passage by the House last December. This legislation has 

ringing endorsements from a wide array of interests and the public, 

including family groups, business groups, law enforcement, schools 

and universities. 

As you know, we have extensively, extensively consulted experts, 

both within the executive branch and outside it, to make sure that 

we are getting it right. In short, we have worked with the affected 

agencies and the affected public. Even though the legislation may 

contain some tough provisions, the people and entities who are impacted by it see its wisdom. I am proud to say that we have done 

a good job in balancing our nation’s security needs with the need 

to protect our values and our freedom. 

I am delighted that we are having this hearing to vet further on 

this particular piece of legislation some concerns on it, but I think 

at the end of the day, within the next several days, at least by this 

time next week, we need to get this piece of legislation passed and 

on to the President. It is past time for us to do it. We need to move 

it on forward. 

Thank you, Mr. Chairman. I look forward to the witnesses testifying at this hearing. 

Chairman KENNEDY. Senator Kyl. 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Thank you, Mr. Chairman. Again, thank you for 

holding this hearing. You and Senator Feinstein and Senator 

Brownback have been great to work with in getting this bill toVerDate Jan 31 2003 23:01 Apr 08, 2003 Jkt 085885 PO 00000 Frm 00007 Fmt 6633 Sfmt 6602 E:\HR\OC\B885.XXX B885
4

gether. I would also like to thank our staffs who have, frankly, 

done a lot of the work: Esther Olivaria, Lavita Strickland, David 

Neal, and Elizabeth Mayer. We do not often enough thank those 

who do a lot of the hard work for us on our staff. 

The unanimous consent agreement which is pending before the 

Senate allows us to bring this bill up today and we are looking forward to moving it quickly in order to close the loopholes in our immigration laws that have allowed terrorists to come into this country. 

We are looking forward to hearing from the witnesses, and again, 

thank you, Mr. Chairman. 

Chairman KENNEDY. Thank you very much. 

We will hear first from MaryEllen Salamone. MaryEllen 

Salamone is a pediatric physical therapist, a special education consultant in North Caldwell, New Jersey. She worked for the State 

of New Jersey for many years writing and implementing policy. 

Her husband, John, worked for Cantor Fitzgerald on the 104th 

floor of Tower I of the World Trade Center. After the terrorist attacks, she has joined with other families who have lost loved ones 

to establish Families of September 11, a nonprofit organization 

that works to promote the interests of victims’ families and support 

public policies that strengthen our security and guard against future attacks. 

We are very, very grateful. We know that this is difficult for you 

to be talking about these issues, but it is very important that we 

hear you. Thank you for coming.

STATEMENT OF MARYELLEN SALAMONE, DIRECTOR, 

FAMILIES OF SEPTEMBER 11, INC., NORTH CALDWELL, NJ 

Ms. SALAMONE. Thank you, Mr. Chairman, Senator Brownback, 

and all members of the committee for granting me this opportunity 

to testify on this most critical issue. I would also like to take a moment to thank Senator Kennedy, Senator Byrd, the Senators from 

our area, Senators Clinton and Schumer and Corzine and 

Torricelli, for supporting the families of September 11 in negotiating the aftermath of the devastating tragedy on September 11. 

Between July and September 2001, 19 terrorists gained access to 

our country, unrecognized. On September 11, 2001, they passed undetected through airline security, hijacked four commercial jets, 

and crashed into the towers of the World Trade Center, the Pentagon, and rural Pennsylvania. They murdered in cold blood thousands of innocent people. They maimed the security innocence of 

more than 10,000 children left without one or both parents. They 

destroyed the trust Americans had in the safety of their country. 

On September 11, 2001, the terrorists won. 

My name is MaryEllen Salamone. I am the wife of John 

Salamone, a broker in preferred stock for Cantor Fitzgerald who 

was killed in the apocalyptic attacks on September 11. I am a 

widow, a newly single mother of three small, beautiful children, 

and a director of the organization Families of September 11. We 

are comprised of nearly 1,000 family members of victims of the attacks and we are committed to affect change to prevent further 

acts of terrorism so that the lives taken from our loved ones will 

not have been lost in vain. 

5

Families of September 11 supports without reservation and without revision the Enhanced Border Security and Visa Entry Reform 

Act. 

Defects in American procedures led to the heinous events of September 11. Osama bin Laden is not a brilliant man. He is an average man who took advantage of the weaknesses in our airline security and immigration laws. The Enhanced Border Security Act is 

an important and necessary bill that addresses the failures of our 

current policies. The members of the House of Representatives 

have already passed the bill and the Senate must do the same. Our 

borders remain as porous as they were before September 11 without immediate action on this bill. 

Families of September 11 supports the provisions of this bill as 

written. We support the development of an interoperable law enforcement and intelligence data system. In today’s age of advanced 

technology, it is unacceptable that there is not yet a system with 

the capacity to share information amongst government agencies. 

No better example for the immediate need of improved communication can be offered than that of the fact that six months after the 

heinous attack on America, the INS approved two of the hijackers 

for flight school posthumously. 

We also support all provisions of the legislation which would decrease the probability of a dangerous individual gaining access or 

securing residence in our country. The requirement for the use of 

only machine-readable tamper resistant visas and travel and entry 

documents that use standard biometric identifiers, the mandate 

that all vessels be obligated to submit pre-arrival manifests, and 

the restriction on aliens from countries that are state sponsors of 

international terrorism are all important and necessary corrective 

measures this government can no longer delay enacting. 

Finally, Families of September 11 advocates for the establishment of a foreign student tracking system. Two of the hijackers entered this country under student visas and never reported for classes. To date, there continues to be no enforced regulations that track 

foreign students or require the reporting of any foreign person with 

a student visa that does not report for classes as admitted. This bill 

remedies this lax oversight and requires adherence to direct reporting. 

In 1941, Franklin Delano Roosevelt spoke of a world founded 

upon four essential freedoms, the fourth being freedom from fear. 

We in these United States of America no longer enjoy that freedom. 

Our border policies and immigration laws are fatally flawed and 

these weaknesses contributed to the failure to prevent the attacks 

of September 11. Thousands of our loved ones were taken from us 

senselessly that day. Most of their bodies have not been recovered. 

They have not been brought home. Ten thousand children cry each 

night, missing a parent. Seven months have passed since the murder of more than 3,000 people on American soil and our current 

border security and immigration policies have not changed and 

leave our doors open for another attack. 

The Enhanced Border Security and Visa Entry Reform Act would 

strengthen our borders and establish more effective procedures for 

immigration screening and control. It is not fiscally burdensome or 

inappropriate. As written, it does not duly impede anyone’s civil 

6

liberties, nor is it violative of due process. The delay in passing this 

legislation is unconscionable. 

As members of the Senate, you have a responsibility to secure 

the safety of those you have been elected to represent. You must 

pass the Enhanced Border Security and Visa Entry Reform Act and 

you must pass it now. Otherwise, we all stand to lose another important freedom, and that is the freedom my husband was denied, 

the freedom to live. Thank you. 

Chairman KENNEDY. Thank you very much for an excellent 

statement summarizing the bill eloquently and the important reasons for those provisions. It is very helpful to have the support of 

your organization. We have pointed that out to our colleagues and 

all of our colleagues have been very mindful of that and it has 

made a big difference. We want you to know that. 

Ms. SALAMONE. Thank you. 

Chairman KENNEDY. How are your three children? 

Ms. SALAMONE. They are okay. They had a rough time after the 

holidays and through the end of the winter, but they seem like 

they are getting back on their feet again. 

Chairman KENNEDY. Good for you. 

[The prepared statement of Ms. Salamone follows:]

STATEMENT OF MARYELLEN SALAMONE, DIRECTOR, FAMILIES OF SEPTEMBER 11, INC., NORTH CALDWELL, NJ 

Thank you Mr. Chairman and members of the Committee for granting me this 

opportunity to testify on this most critical issue. 

Between July and September 2001, nineteen terrorists gained access to our country, unrecognized, and continued their planning and preparations to carry out an 

attack of epic proportions against the people of the United States. On September 

11, 2001, they passed through the airline security at three major airports, hijacked 

four commercial jets in flight and crashed the planes into the towers of the World 

Trade Center, the Pentagon and rural Pennsylvania. They murdered, in cold blood, 

thousands of innocent people. They maimed the security and innocence of more than 

ten thousand children left without one or both parents. They destroyed the trust 

Americans had in the safety of their country. On September 11, 2001, the terrorists 

won. 

My name is MaryEllen Salamone. I am the wife of John Salamone, a broker in 

Preferred Stock for Cantor Fitzgerald, who was killed in the apocalyptic attacks on 

September 11. I am a widow, a newly single mother of three small beautiful children, and a director of the organization Families of September 11. We are an organization comprised of nearly 1,000 family members of people killed or injured in the 

attacks. Our mission is to promote the interest of families of victims of September 

11 and to support public policies that improve the prevention of and the response 

to terrorism. Our goal is to assist in any and all efforts to prevent any other family 

from suffering the devastating loss we have incurred. We are committed to effect 

change so that the lives taken from our loved ones will not have been lost in vain. 

Families of September 11 supports without reservation the Enhanced Border Security and Visa Entry Reform Act. 

Defects in American procedures allowed the heinous events of September 11 to 

occur. Osama Bin Laden is not a brilliant man who succeeded in toppling the homeland defense of the United States of America. He is a average man who took advantage of the weaknesses in our policies governing airline security and our immigration laws. The Enhanced Border Security and Visa Entry Reform Act is an important and necessary bill that must be passed now. It addresses the failures of our 

immigration laws and visa procedures, and without it, we remain fearfully vulnerable. 

As an example, on March 11, the six month anniversary of the attacks, Mohammed Atta, the purported ringleader of the team of hijackers, and his cousin, the two 

men who piloted the planes into the Twin Towers of the World Trade Center, the 

two men responsible for the murders of more than 2500 people, were posthumously 

granted permission to attend flight school by the United States Immigration and 

Naturalization Service. Even more horrifying than this is the realization that this 

7

is just one glaring and high profile example of dangerous individuals being able to 

enter our country legally. The honorable Members of the House of Representatives 

have already passed this bill, and the Senate must do the same. Our borders remain 

as porous as they were before September 11 without immediate action. 

Families of September 11 supports all provisions of this bill as written. We particularly appreciate the opportunity to recognize key provisions of this legislation 

which we feel most effectively will address the flaws in our present system. • Interagency Information Sharing—This bill requires the use of advanced and 

available technology to correct flawed practices and appropriates funding for their 

development. Despite the advantages the computer age offers, independent agencies 

of the government are not equipped with the capacity to share information on foreign individuals residing in our country, or seeking to gain entry through our borders. Individuals could be on a CIA Terrorist Watch List while gaining lawful access 

to the United States. The Enhanced Border Security and Visa Entry Reform Act 

prevents the perpetuation of this inexcusable deficiency by requiring the development of interoperable law enforcement and intelligence data systems with name 

matching capacities and training. With all the technology available today, it is incomprehensible that a system such as this does not already exist. • Biometric Identifiers—This legislation further relies on the advancements of 

science by mandating the use of biometrics. Pertinent sections of the bill expressly 

provide for the use of only machine readable, tamper resistant visas and travel and 

entry documents that use standard biometric identifiers. This decreases the likelihood that passports or other documents could be shared or counterfeited. The bill 

also demands that as a condition to continue in the visa waiver program, foreign 

countries must issue its nationals machine readable passports with biometric identifiers that comply with standards acceptable within our system. • Foreign Student Monitoring Program—Two of the hijackers entered this country under student visas and never reported for classes. To date, there continues to 

be no enforced regulations that track foreign students or require the reporting of 

any foreign person with a student visa that does not report for classes as admitted. 

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provided 

for the development of a tracking system and required it to be fully operational 

within 18 months of the enactment of that legislation. Yet on September 11, 2001, 

this government had no means to identify or locate foreign individuals on student 

visas remaining in this country illegally. The provisions required in the Illegal Immigrant Act of 1996 were never enforced; a tracking database was never implemented. the Enhanced Border Security Act remedies the lax oversight of the foreign 

student tracking system and requires adherence to direct reporting requirements 

within 120 days of the bill’s enactment into law. • Passenger Manifests—Most of the hijackers on September 11 hailed from Saudi 

Arabia, which, by our own laws, is not required to submit passenger manifests of 

vessels entering our country. A system most equipped to prevent the passage of dangerous entrants into our country is one which would require an individual to pass 

through a series of security checkpoints. The Enhanced Border Security Act requires 

the submission of passenger manifests of all vessels entering our ports, providing 

an additional opportunity to identify potentially dangerous terrorists. 

• Restriction of Visas to Nonimmigrants From Countries Sponsoring Terrorism—

As a necessary measure to strengthen homeland security during this dangerous 

time in history, the enhanced Border Security Bill also prohibits the issuance of 

entry documents to any alien from a country that is a state sponsor of international 

terrorism, unless the Secretary of State determines that the person is not a threat. 

In 1941, Franklin Delano Roosevelt spoke of a world founded upon four essential 

freedoms, the fourth being freedom from fear. We, in the United States of America, 

no longer enjoy that freedom; we can no longer claim it as our own. Our border policies and immigration laws are fatally flawed. These weaknesses contributed to our 

failure to prevent the attacks of September 11. As a result, thousands of our loved 

ones were taken from us senselessly. Over ten thousand children cry for the loss 

of a parent as they close their eyes to sleep. Seven months have passed since the 

murder of three thousand people on American soil, and our border security and immigration policies leave us waiting for another attack. 

The Enhanced Border Security and Visa Entry Reform Act would strengthen our 

borders, and establish more effective procedures for immigration screening and control. It requires the use of currently available technology and coordinates interagency cooperation. It is not fiscally burdensome or inappropriate. It does not unduly impede anyone’s civil liberties, nor is it violative of due process. The events 

of September 11 and the current state of international affairs clearly illustrate that 

this is a time to secure safety, not a time to allow loopholes for terrorist activity. 

This legislation must be passed without amendment. As written, it secures our safeVerDate Jan 31 2003 23:01 Apr 08, 2003 Jkt 085885 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 E:\HR\OC\B885.XXX B885
8

ty; if amended, it compromises it. The delay in passing this legislation is unconscionable. As Members of Congress, you have a responsibility to secure the safety 

of those you have been elected to represent. You must pass the enhanced Border 

Security and Visa Entry Reform Act and you must pass it now. Otherwise we stand 

to lose another important freedom, the freedom to live.

Chairman KENNEDY. We have been joined by one of our prime 

leaders on this, Senator Feinstein, who has been so involved in 

shaping and helping to drive this legislation. If she would want to 

say a word at this time before we hear from our other witness, we 

would welcome it. 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you, Mr. Chairman. Just a couple of 

words. 

First of all, thank you so much for having the courage to come 

and be here and spur us on. I think all of us agree with everything 

you said. I only wish we were able to move earlier to do what we 

should have done after the 1993 attack. That really, I think, was 

our warning. We have to move to change what has been a paperdriven agency into an action-driven agency. 

Senator Kyl and I have worked on this bill, as you probably 

know, Senators Kennedy and Brownback on another half of the 

bill, and then we put the two halves together to a whole. Some feel 

that, I think, action should not be taken until after the agency is 

reorganized. I do not think any one of us share that view. I happen 

to believe it is probably the most significant piece of legislation we 

can pass to secure our borders. 

Ms. SALAMONE. I agree. 

Senator FEINSTEIN. I think in the hearings that Senator Kyl and 

I held, when we questioned the State Department, and particularly, I think Senator Kyl will remember, the head of the visa section, I think it was, and she said, well, they had no intelligence to 

prevent the granting of these visas to the hijackers. So a part of 

this bill remedies that by providing an interoperable database between these agencies. 

Then there was the instance that a couple of these hijackers actually came in on visas that had expired and nobody caught it. And 

then there was the instance that six months after 9/11, visa renewals were sent out, which means to me that nobody bothered, even 

after 9/11, to check the database to see if there was anything suspicious in the database before they sent it out to the contractor to 

be mailed out. 

Coming from California, where there has been massive fraud in 

the student visa program, particularly in San Diego, where people 

are actually doing time because they falsified a student’s presence 

in school, they falsified grades, so we have taken, I think, the best 

that we can take to really change this agency with a mandate. 

Now, it is going to cost money, but it is probably the best expenditure of money we can do at this point in time. 

So I just want to say thank you for being here this morning. 

Ms. SALAMONE. Thank you for having me. 

Senator FEINSTEIN. I know all of us wish you well and it will be 

a good life for you, I think. 

Ms. SALAMONE. Not right now, but one day, in time. Thank you. 

9

Senator FEINSTEIN. Thanks, Mr. Chairman, very much. I appreciate it. 

Chairman KENNEDY. Thank you very much. 

We will hear from Kathleen Walker, an attorney in El Paso, 

Texas, with the law firm Kemp Smith. She is an expert on border 

affairs. Her practice primarily involves the areas of immigration, 

customs, and international transaction. She is Past President of the 

American Immigration Lawyers Association, has served on the 

AILA’s National Board of Governors since 1998. She served as a 

board member of the Board of Trade Alliance on the Texas Border 

Infrastructure Coalition. She was appointed to the State of Texas 

Comptroller of Public Accounts Border Advisory Group by the 

Comptroller. She is currently involved with the Immigration Subcommittee of the U.S. Chamber of Commerce. 

Is there anything you have not done on immigration kinds of 

matters? You have a very impressive background and experience 

and we thank you so much for being here. We are looking forward 

to your testimony. 

STATEMENT OF KATHLEEN CAMPBELL WALKER, AMERICAN 

IMMIGRATION LAWYERS ASSOCIATION, EL PASO, TX 

Ms. WALKER. Thank you, Mr. Chairman and very distinguished 

members of this subcommittee. It is indeed an honor and a privilege to have the opportunity to say a few words on this important 

bill. 

I am here representing the American Immigration Lawyers Association, a national bar association comprised of almost 8,000 attorneys engaged in the practice of immigration law, representing immigrants’ rights and trying to deal with figuring out how we apply 

our complex immigration laws. As we all know, it is more than a 

Rubik’s cube to be able to figure out how they interrelate. 

This bill recognizes that fact. This bill notices that we do not 

have just a clear ability to just address one point. They are interlocking issues dealing with border security. That is what is so pivotal about this bill. It is a package that needs to be passed now. 

If we do not pass it, then we do so at our peril, as we have already 

painfully been reminded by events on September 11. 

We believe that swift passage is necessary because we have already lost seven months in the ability to go recruit and hire additional inspectors and investigators. That, on its own, is inexcusable. 

We have got only 2,000 investigators to go track people down 

right now within the INS. We strongly support that they be recognized for their efforts and be supported and fortified. But the same 

thing goes to the valuable duties that are performed by our inspectors. Inspectors are different than Border Patrol. We can keep on 

adding Border Patrol on our borders, but it does not engage in the 

issue of being able to ascertain whether or not someone is a bad 

guy or a good guy when they come to our ports of entry, and it is 

not that simple, either. 

The face of terrorism is not one that one can check a box on. 

There is a new form out that we have been asked to complete when 

we apply for visas across the world at our U.S. consulates where 

we check off background information. Is that really going to enable 

us to do anything? I hazard a guess that the answer is no. We have 

10

to have effective interlocking systems engaged and we cannot wait 

to proceed with them. 

In addition to that, as to the reorganization bill, it seems like I 

am beating the same drum over and over again, but we have got 

a Customs Service down there at our ports of entry. After 9/11, the 

Customs Service and the Immigration Service were not on the 

same board on reacting to the events of 9/11. In addition to that, 

we had problems in just what was happening in California, what 

was happening in Texas, Arizona, and on our northern border in 

reaction to 9/11. It is absolutely critical that we require coordination. 

It is critical in addition to that that we push some of the burden 

away from our ports of entry by creating something like the North 

American Perimeter Security Zone that is addressed by this bill. In 

addition to that, pre-inspection, pre-clearance, passenger manifests 

are all part of this bill that allow us to be more effective in interdiction. 

Do we wait? What portion of the bill do we drop? Would anyone 

hazard a guess as to any portion of this bill that they would remove and not try to address at this point in time? I believe the answer is no on the part of the American public, as well, I will be 

so bold to say. And certainly, sitting here next to someone representing the group that she does, I am very humbled and humiliated by the response of our Congressional bodies by not going 

ahead and having this bill passed by now. 

One thing that we have to keep reminding ourselves about as we 

proceed is that enforcement carries with it the responsibility to do 

so with due process, with professionalism. Since 9/11, the easiest 

thing to do at our ports of entry is to adopt an enforcement mentality that does not want to listen to anybody, that assumes everybody is going to come and do harm to this nation. That is not the 

case. Our economic prosperity depends on being able to facilitate 

trade and commerce. 

We have dealt on the border for years with this conundrum 

about how do we facilitate as well as interdict. It is not something 

that really takes a rocket scientist. I really believe that strongly. 

If we have the ability to have people enroll voluntarily in programs 

to say, I am more than happy to submit my fingerprints to an FBI 

check so that you can facilitate my entry and focus your scarce resources on the people that you need to be concerned about, that is 

what makes sense now. That is wise use of our resources, and we 

have not in the past done that. 

Case in point, post-9/11, we have something called a dedicated 

commuter lane in my neck of the woods in El Paso, where I have 

gone through myself a ten-print FBI check. I have had a sevenpoint inspection of my vehicle. Post-9/11, the response, knee-jerk, 

was even in those lanes, they were going ahead and using the exact 

same procedures utilized for everyone else. It makes no sense. This 

bill directs the resources to be focused, utilized wisely. 

I could not support the provisions of it more. From the consular 

corps perspective, they are the first line of defense. The second line 

of defense is INS. But look what you have done within this bill. 

You are creating yet a third line that can be utilized by garnering 

the use of our trading partners in the Canadian and Mexican borVerDate Jan 31 2003 23:01 Apr 08, 2003 Jkt 085885 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 E:\HR\OC\B885.XXX B885
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der areas to help us in this process. What could be more logical and 

rational? Is this a desperate measure born from desperate times? 

As Senator Brownback so aptly stated earlier, it obviously is not. 

It is a studied review of what it is going to take to address the war 

on terrorism that we are engaged in. That is what this is. It is a 

war. Let us go ahead and give people the tools that will enable 

them to address it effectively and make this the pivotal first downpayment on this action. Thank you. 

Chairman KENNEDY. Thank you very much, Ms. Walker. Someone of your background and knowledge and study and practical experience, to have your strong support of the provisions is, I think, 

very encouraging, and hopefully our colleagues will feel very reassured because you bring a wealth of experience. 

[The prepared statement of Ms. Walker follows:]

TESTIMONY OF KATHLEEN CAMPBELL WALKER, AMERICAN IMMIGRATION LAWYERS

ASSOCIATION

Mr. Chairman and Distinguished Members of the Subcommittee: 

My name is Kathleen Campbell Walker. I am honored to be testifying today before you on behalf of the American Immigration Lawyers Association (AILA). AILA 

is the national bar association of nearly 8,000 attorneys and law professors, who 

represent the entire spectrum of individuals subject to our immigration laws. I have 

been privileged to chair AILA’s State Department Liaison Committee for the past 

three years and am a member of that organization’s Border Issues Committee. I also 

practice immigration law in El Paso, Texas, where I have focused for over 16 years 

on border issues. In addition, I serve on the Texas State Comptroller’s Border Advisory Council, and have served as a board member of the Border Trade Alliance as 

well as a member of the Executive Committee of the Texas Border Infrastructure 

Coalition. I worked for four years as President of the El Paso Foreign Trade Association to establish the first Dedicated Commuter Lane using Secure Electronic Network for Travelers’ Rapid Inspection (SENTRI) technology in the State of Texas. 

I thus bring to the table practical and on the ground experience regarding the 

challenges of border security, and cross-border and cross-agency issues that I hope 

will be of use to the Committee as it works to develop laws to address effectively 

the complex issues raised by achieving effective border security without harming either our internationally based economy or our dedication to respecting individual 

rights preserved by the Constitution. 

INTRODUCTION: THE IMPORTANCE OF THE BORDER SECURITY AND VISA REFORM BILL

AND THE NEED FOR ITS SPEEDY PASSAGE

I appreciate this opportunity to present AILA’s views on the Enhanced Border Security and Visa Entry Reform Act. AILA applauds this Committee’s responsive and 

thorough work in formulating this bill and strongly supports its swift passage. This 

bipartisan bill takes significant steps to improve the capability of federal agencies 

engaged in applying our immigration laws to determine who should or should not 

be admitted to the U.S., and to ensure that our nation’s immigration policies are 

in line with our common goal of effectively deterring terrorism. On behalf of AILA, 

I commend Senators Kennedy, Brownback, Kyl, and Feinstein for their leadership 

in developing this important measure. The Enhanced Border and Visa Reform Act 

is central to this nations’s effort to implement the necessary steps that will enhance 

and increase the layers of security both at and away from our borders. 

This nation does not have the luxury of waiting to enhance the protection of the 

precious jewel, which is this nation. Without the tools provided in this bill, those 

who protect our borders and attempt to fairly implement our laws would confront 

the war on terrorism with an antiquated and poorly coordinated armory. At this 

critical time, we must give our federal agencies the tools they need to succeed in 

their task, rather than handing them their marching orders without the means to 

achieve their objectives. And we must do so without losing sight of our country’s 

long and proud history of due process and respect for civil liberties. 

The Enhanced Border Security Bill includes real solutions to real problems. It also 

recognizes that we cannot achieve security without accountability. Database integration that is not combined with well-trained inspectors, investigators, and consular 

officers is an insufficient response to our security needs. Equally important, we canVerDate Jan 31 2003 23:01 Apr 08, 2003 Jkt 085885 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 E:\HR\OC\B885.XXX B885
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not expect our federal agencies to be able to look into the minds of individuals with 

no criminal records to find a potential terrorist. Terrorists do not check off the boxes 

on a form to indicate that they are, or may be, terrorists. We thus need to make 

sure not to pose false solutions to real problems and thereby lull ourselves into a 

degree of security we have not achieved. 

The border security bill is premised on two facts. First, enhancing our intelligence 

capacity is key to our increased security. The face of terrorism is not tied to one 

nationality, religion, or ethnic group. The horrific terrorist action in Oklahoma is 

an ever-present reminder to us of that painful fact. Any changes in immigration 

policies or procedures must allow our federal agencies timely fact. Any changes in 

immigration policies or procedures must allow our federal agencies timely access to 

valuable and reliable intelligence. Second, our most effective security strategy is to 

keep out those who mean to do us harm, while admitting those who come to build 

America and make our country stronger. Immigration is not a synonym for terrorism. The problem here is terrorists, not immigrants. We need to isolate terrorism, 

not America. 

The Enhanced Border Security bill’s provisions reflect two important understandings about our country and our needs—namely, that we are a nation of immigrants, and that we must undertake any reforms in ways that do not destroy our 

economy and commerce. The U.S. is an integral part of the world economy, with 

global business, tourism, and migration serving a pivotal role in our economic prosperity. As we take important and needed steps to enhance our security, we must 

seek to ensure the efficient flow of people and goods across our borders. If we do 

not, we risk both chaos at our borders and the destruction of our economy, and 

along with it, the ability to pay for our national security. ‘‘Fortress America’’ is an 

undesirable and impractical solution that repudiates our history and our economic 

and social needs as well as the current reality of our global economy. 

Nearly 500 million entries occur annually by people who come to the U.S. as tourists, business people, students, or to visit with their families. Less than one million 

annually settle here as immigrants. Living in a border community underscores on 

a daily basis the imperatives this flow creates and the importance of this bill, and 

the necessity of balancing our security needs with the fact that we are a nation of 

immigrants and that we must continue to facilitate the free flow of people and 

goods. 

After September 11, border communities experienced first hand the need for federal agencies to work together. These communities dealt with repeated inspections 

of same-day crossers without any modification of procedures to reflect the waste of 

resources that occurred whenever the same individuals were repeatedly put through 

the same enhanced inspection processes. Pedestrians and passenger vehicles waited 

more than 5 to 6 hours to enter the United States, a delay that overtaxed our border 

agencies and reduced the effectiveness of our inspectors. While patriotism and a 

concern for our country’s security led these communities to tolerate these disruptions, many asked if these procedures really were making us safer. I fear that the 

answer is ‘‘no.’’ In the meantime, at a time of economic downturn, border communities faced further suffering as a result of our economic interdependence on our 

neighboring countries. From the perspective of this nation’s border communities, the 

Border Security bill presents a reasoned and timely approach to this challenge of 

balancing our security with our economic realities.

In summary, AILA urges the bill’s swift passage because it reflects the following: 

• We must enhance our security as a nation of immigrants. Our immigrant heritage remains central to our national identity and helps explain our nation’s vitality 

and success. 

• We must enhance our security in ways that will not destroy our commerce or 

economy or inhibit the efficient and secure flow of people and commerce at our borders and ports of entry. Our economic security is essential to our national well-being 

and contributes to our ability to enhance our national security while improving our 

nation’s global competitiveness. 

• The key to enhancing our national security is increased intelligence provided on 

a timely basis to the appropriate federal agencies. 

• Our best protection is to focus our security resources where they are most needed. We must be able to identify and separate low risk travelers and facilitate their 

entry. Such measures are more effective and more easily implemented than measures that focus on persons after they enter the U.S. In all cases, we need to make 

sure that we use our resources in the most effective way possible to keep out those 

who seek to do us harm, not those seeking to come to our country for the reasons 

that people have always come here, including escaping persecution, desiring to be 

reunited with their families, working legally in the U.S., investing or conducting 

business in the U.S., or visiting this country as tourists. 

13

As Congress addresses the need to enhance our national security and the many 

important as well as complex issues raised in this discussion, it is important to recognize that: • The Senate Needs To Pass the Enhanced Border Security and Visa Reform Bill 

as a Package: All the various parts of the border security measure are needed to 

enhance our security. The different provisions in the bill fit together to create an 

effective border security and visa security-related reform initiative. Selectively passing only some of this bill’s many important provisions will leave dangerous gaps 

that threaten our security and decrease the effectiveness of our federal agencies. 

The bill’s provisions reflect the reality of the federal synergies inherent in our current immigration system, and recognize that enhancing our security will require the 

combined efforts of many federal agencies and the support of Congress and the Administration. The bill also recognizes that our security is further enhanced by defined cooperative efforts with our Canadian and Mexican neighbors. We cannot 

achieve security-related goals in an international vacuum. • The Bill Needs To Be Quickly Passed: It is vitally important that this measure 

be passed and signed into law with all due haste. Delay threatens our safety and 

well-being and flies in the face of the gravity of the situation created by the incomprehensible events of September 11. The bill’s provisions include changes in the 

policies, practices, and procedures of several federal agencies including, but not limited to, the Immigration and Naturalization Service (INS). While reorganization of 

that agency is a top congressional priority, we cannot afford to wait until that task 

is undertaken to implement the necessary changes advanced by the border security 

bill. We need to move forward now to implement the important reforms included 

in the bill. How can we say ‘‘wait’’ to those lost on September 11 or to their surviving families and friends? 

Our urgent need to move forward on this bill is underlined by the fact that our 

border security concerns go beyond the INS and its reorganization. Intra-agency coordination, which is a primary goal of the bill, needs to be addressed immediately, 

as vividly illustrated in Inspector General Fine’s February 28, 2002 testimony on 

the Visa Waiver Program. In his testimony before the Subcommittee on Immigration 

and Claims of the House Judiciary Committee, Inspector Fine notes that in July 

2000, the INS submitted 22 projects to the U.S. Customs Service requesting modifications to the Interagency Border Inspection System (IBIS) which the Customs 

Service manages. One of these changes mandated via IBIS was the entry of an 

alien’s passport number upon primary inspection in order to enhance the interdiction of fraudulent passport users. The Customs Service would not pay for the revisions from its own budget, and INS did not receive funding for this effort until FY 

2002. Perhaps timely funding would have been appropriated if there had been more 

intra-agency coordination. • The Administration and Congress Must Support Adequate Funding for the Bill’s 

Initiatives: Given the bill’s very ambitious deadlines, the Administration and Congress need to step up to the plate and provide the federal agencies with the staffing 

and funding levels necessary to implement this measure’s provisions. The Bush Administrations’ proposed FY 2003 budget is a good first step, but we must be prepared to fund this effort generously, with Congress and the Administration reviewing how the agencies use these funds. The functions targeted in this bill have been 

neglected for decades, and it will take much patience, time, congressional attention, 

and sufficient appropriations to achieve the goals of this legislation. 

• The Administration and Congress Need To Be Prepared To Respond to Potential Problems With Mandated Deadlines: Some of the bill’s provisions, particularly 

several of the mandated implementation deadlines, may impact negatively on cross 

border commerce and travel. Certainly, the goal of exit and entry control at our land 

ports needs to be carefully reviewed. The investment in infrastructure alone could 

prove to be significant (for example, certain land ports will have to add lanes for 

exit control inspection). And these costs do not take into account the necessary staffing increases. The Administration and Congress need to be open to effective alternatives, alert to the consequences of short time frames, and willing to modify these 

deadlines as merited, and, in some cases provide alternatives and/or appropriate expedited funding. 

• Federal Agencies Need To Step Up to the Plate: The federal agencies, especially 

the INS, the Department of State (DOS), and the U.S. Customs Service, play critical 

integrated roles in enhancing our nation’s security. With sufficient funding, the provisions in the Border Security Bill will give federal agencies the wherewithal to 

achieve their goals. For their part, the agencies need to be up to the task of implementing major reforms that address our security needs and, at the same time, recognize the continued importance of immigration to our nation: people will continue 

to seek entrance to the U.S. to visit, reunite with their families, contribute to the 

14

American economy, and seek safe haven. The efficient flow of cross-border and international commerce must continue to fuel our economic recovery and growth. We also 

cannot tolerate inter-agency or intra-agency disagreements that threaten to derail 

the goals of the bill, for we do so at our collective peril. 

The Enhanced Border Security and Visa Reform Bill highlights the urgent need 

for the following: 

• A U.S./Mexico Immigration Agreement To Help the U.S. Address National Security Concerns: These discussions offer the United States the opportunity to align our 

immigration policies with our national security needs, market forces, and family reunification goals. Bilateral cooperation in enforcement efforts regarding illegal immigration, an alternative for hardworking immigrants already here filing legitimate 

labor needs to earn legal status, a new temporary program for essential workers to 

fill identified labor needs, and more visas for workers and family members are initiatives that will contribute to our security. Because the Border Security bill creates 

the additional impetus for Mexico and the U.S. to coordinate and cooperate, it follows that by encouraging and facilitating legal immigration, both countries will be 

able to focus their resources on terrorists and people engaged in smuggling, trafficking, and other criminal activities. 

• An Effective Reorganization of the INS and Border Functions: A reorganization 

of the INS tops the congressional agenda and must take place. However, as noted 

earlier, such restructuring must not delay the passage of the Border Security Act. 

Reforming the INS has dramatic implications for the border and, hence, border security. Any reforms of the INS must recognize that the inspections function, by its 

very essence, represents the competing missions of the INS. Inspectors both process 

thousands of applicants for entry documents while simultaneously trying to identify 

and interdict criminals or potential criminals. The enforcement and adjudication aspects of inspections need to be closely coordinated, as do INS and U.S. Customs, the 

two primary agencies staffing our ports of entry. 

Such inter- and intra-agency coordination will be harmed by any proposal that 

would split off INS inspections and other aspects of INS enforcement from the rest 

of the agency, as has been contemplated by reports about a proposed border security 

agency. That type of splitting merely adds another cook in an already over-crowded 

kitchen. Rather, some form of unified port management may provide the needed solution, and merits further investigation. Unified port management does not require 

the reinvention of the proverbial wheel by forming a new single federal agency. Instead, port efficiencies are achieved through community and agency involvement to 

create a port authority reporting to a governing body comprised of agency and Administration members. Such a body would clearly and decisively react to port of 

entry security, staffing, infrastructure, and policy needs. All of these needs must be 

coordinated to achieve the goal of enhanced border, and hence, national, security. 

THE ENHANCED BORDER SECURITY AND VISA REFORM BILL INCLUDES NEW AND

NECESSARY DETERRENCE MEASURES

Among other provisions, the Enhanced Border Security bill includes increased 

funding for the DOS and INS, increased access to lookout lists, reforms at our consulates, the use of new technologies, direct government funding of these technologies, more pre-inspections abroad, a study of the creation of a North American 

Perimeter Safety Zone, reforms to the foreign student program, and a workable 

entry-exit control system. These and other provisions in this measure will help enhance and create layers of protection that stand between us and any potential terrorist adversaries from abroad. The bill’s provisions interrelate with each other to 

create a more effective security net and the foundation necessary to enhance our security, and include the following. 

1. Increased Staffing and Funding for DOS and INS and Interagency Data Sharing 

The Border Security bill authorizes increased personnel, technology funding and 

data access for the DOS and INS, and also provides additional training for INS and 

DOS staff. These provisions provide an important first step. Clearly, both agencies 

need increased staffing levels and funding to appropriately handle their heightened 

security-related responsibilities post September 11. Staffing shortages already were 

prevalent in INS inspections and investigations prior to September 11. In addition, 

the consular corps for years has been overtaxed and under-resourced. 

Inadequate funding has left these agencies with technologically obsolete and incompatible computer systems. Some offices, especially those overseas, do not have 

adequate computer capacity, much less sufficient access to Internet resources. In 

order to effectively fight terrorism by enhancing our intelligence capabilities and improving our border security, both the DOS and the INS need this increased funding 

15

to upgrade their technological infrastructures. However, Congress’ active oversight 

will be necessary to ensure that funding is used wisely and our goals are achieved. The Bush Administration’s FY 2003 budget includes $11 billion for border security. This funding is a critically important down payment and a significant first step 

in providing the money needed for long-overdue changes. However, the reforms this 

measure contemplates will demand large, multi-year commitments from Congress 

and the Administration. It is necessary and appropriate that such funding come 

from direct federal appropriations. Technological capacities at our federal agencies 

cannot be fully supported through user fees. 

2. The Use of New Technologies 

The Border Security Bill recognizes that in order to gather and make accessible 

a great range of information about individuals and their identities, it is critical to 

make use of existing and emerging technologies to achieve the most reliable means 

of verifying identity. The bill seeks to upgrade the technological capacities of the 

government so that federal agency personnel are better trained and equipped to use 

new technologies to effectively screen out potential terrorists. The bill also includes 

provisions for the issuance of machine-readable, tamper-resistant, travel documents 

with biometric identifiers that would promote the use of secure passports and visas

resistant to counterfeiting. The federal government needs to fund the development 

and use of these new technologies and ensure that the various federal agencies coordinate compatible efforts in this area. Given the importance and complexity of 

these efforts relative to the short time frames provided in the bill, Congress needs 

to be willing to modify these deadlines as needed. 

It also is important to recognize that as we attempt to strategically balance our 

security concerns with our economic needs, we need to test these new technologies 

and staff them appropriately. And the need is acute. After September 11, people in 

the border pedestrian lines waited 4 to 6 hours to enter the U.S., due to the mandate that all applicants for entry be subjected to an Interagency Border Inspection 

System (IBIS) security check. Because of a lack of scanners, other equipment, and 

staffing, the ports were backlogged and incapable of initiating any inspection efficiencies. 

3. Interoperable Data System, Lookout Lists, and Protections 

The Enhanced Security Bill includes a provision requiring the development and 

implementation of an interoperable data system to provide current and immediate 

access to information contained in the databases of federal law enforcement agencies 

and the intelligence community that is relevant to visa issuance determinations and 

determinations of an alien’s admissibility or removability. U.S. federal agencies, as 

well as international law enforcement officials, need real time, direct access to certain information from the different agencies’ databases. The ‘‘lookout lists’’ created 

by these databases include the names of people who should not be admitted to the 

U.S. or who should be pulled aside for questioning should the authorities come into 

contact with them. Increased funding would allow the agencies to build up their 

technological capacities so that DOS and INS could directly access the FBI’s and 

other agencies’ databases. Direct and timely access to this data would enable law 

enforcement agencies to act immediately to identify those high-risk individuals who 

seek to enter the U.S. or receive other immigration benefits. Names and relevant 

identifying information could assist agencies in interdicting individuals. 

The bill also includes important safeguards against potential abuse of this data 

by: limiting the redissemination of information; ensuring that such information is 

used solely to determine whether to issue a visa or to determine admissibility or 

removability; ensuring the accuracy, security, and confidentiality of information; 

protecting any privacy rights of individuals who are the subject of such information; 

providing for the timely removal and destruction of obsolete or inaccurate information; and doing so in a manner that protects the sources and methods used to acquire intelligence information. The bill also addresses the need for algorithms to account for various name and language transliterations. 

Such safeguards will become even more necessary as the lists increase in size and 

unfamiliar names from various regions of the world may be incorrectly keyed in to 

a database. We must make every effort to ensure the accuracy and timeliness of the 

names on these lists so that the right, not wrong, individual is targeted. 

4. Needed Reforms at U.S. Consulates 

The Enhanced Security Bill recognizes that our intelligence gathering can be further improved by increasing funding for the DOS, improving training for consular 

officers, reforming the Visa Waiver Program, tracking stolen passports, establishing 

a Terrorist Lookout Committee, restricting visa issuance procedures for those from 

designated states sponsoring terrorism, and enhancing the access of the DOS to inVerDate Jan 31 2003 23:01 Apr 08, 2003 Jkt 085885 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 E:\HR\OC\B885.XXX B885
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formation relevant to screening visa applicants who pose a potential threat to the 

safety and security of the U.S. Consular staff cannot be expected to interdict potential terrorists without timely access to relevant intelligence and agency database information, access to the Internet, and relevant training. In addition, to properly address security concerns, DOS needs additional consular staff as well as the attendant support staff and facilities. 

Given the importance of this work, AILA would support upgrading the status of 

the consular officer who interviews visa applicants to determine visa eligibility and 

assess potential fraud allegations. Currently, more junior personnel with less handson visa application interviewing experience perform this function. AILA supports 

the placement and rotation, if necessary, at consular posts of a core of highly 

trained and specialized civil service visa processing specialists, fully trained in the 

complicated area of U.S. immigration law, who would be required to take a certain 

number of continuing consular education courses to be considered for promotion or 

pay increases. 

Furthermore, decisions on visa issuance need to be reviewable. In these times of 

heightened scrutiny when it is much easier than ever to just say, ‘‘no,’’ such review 

is vital to ensure the integrity of the visa application process. Certainly, when comparing the level of accountability to which INS is held versus the DOS, the DOS 

is insulated from core precepts of administrative and judicial review to which INS 

is subject. AILA members know that many INS headquarters policies or regulations 

have been enhanced and improved through our judicial process, and in many cases 

have been strengthened through judicial scrutiny. We believe that such a review 

process is necessary so that DOS consular decisions mirror the checks and balances 

that are central to our democracy and our judicial system. Along with an avenue 

for review of the denial, we recommend providing any visa applicant or applicant 

for entry who is denied a visa or entry with the reasons for the denial. In those 

cases where the adverse decision is affirmed, a visa applicant should at least be provided with a means of appeal to the U.S. District Court for the District of Columbia. 

In addition, consular authority to deny the presence of legal counsel at consular 

interviews should be rescinded since such authority enhances the ability of certain 

consular officers (certainly not all) not well-versed in the law or unwilling to provide 

a modicum of due process to deny applications not based on fact and/or law. 

5. North American Perimeter Safety Zone 

The Enhanced Border Security Bill calls for greater cooperation between the U.S., 

Mexico, and Canada through the study of the feasibility of creating a North American National Security Program. This program would facilitate the creation and implementation of a North American perimeter security zone to increase the collective 

security of all three nations. Such a North American perimeter would bolster security through law enforcement coordination, intelligence sharing, and better joint use 

of enforcement resources. Such efforts would reduce the chance that someone wishing to do harm to the U.S. would travel to one of our neighboring countries and then 

cross by land into the U.S. 

Any cooperation among the three governments in immigration enforcement should 

include a plan to ensure that asylum seekers have meaningful access to protection. 

While Mexico has recently acceded to the refugee convention, access to asylum remains problematic, particularly for migrants intercepted at Mexico’s southern border. On the other hand, Canada should not be pressured into diminishing protections for refugees. All countries in the region can and should strengthen security 

measures. None should be required, however, to lower their protections for refugees 

to the ‘‘lowest common denominator.’’

As North American security cooperation also addresses the issues of smuggling 

and trafficking, the European experience is particularly relevant regarding protection for asylum seekers. The United Nations High Commissioner for Refugees 

(UNHCR) commissioned a report that concluded that the majority of asylum seekers 

arriving in the European Union have been smuggled or trafficked. The report also 

states that in the European Union, ‘‘the effects of blanket enforcement measures, 

such as common visa policies, readmission treaties, carrier sanctions, and airline liaison officers (preinspection personnel) act to deny refugees the possibility of illegal 

exit from the regions of their persecution.’’ The report recommends that European 

nations review their migration and asylum policies to open other channels to people 

fleeing persecution in their native countries. This recommendation includes incorporating the right to seek asylum and the responsibility of non-refoulement into 

anti-trafficking and anti-smuggling policy, recognizing that trafficking and smuggling are both ‘‘inherently abusive’’ and that both trafficked and smuggled persons 

can be refugees, thus improving reception conditions, and increasing family reunification. 

17

6. Preinspection and Preclearance 

As part of the study of the feasibility of a North American Perimeter National Security Program, the bill provides for a study of preinspection and preclearance programs. U.S. preinspection programs currently are in effect in only five countries: 

Canada, Ireland, Bermuda, the Bahamas, and Aruba. In these locations, passengers 

are in effect ‘‘preinspected’’ for admission to the U.S. before ever boarding a plane—

passports are checked and names are run against the applicable lookout lists. This 

preinspection process allows more time for inspection and increases the likelihood 

of a more thorough check. It also would move our system from one that focuses on 

determining a person’s eligibility for admission into the U.S. as a port of entry to 

one that focuses on determining that person’s eligibility at the point of origination. 

This process also would decrease the volume of applications for entry at our air 

ports of entry. (The land ports of entry would receive less of a realized benefit from 

this procedure, but the preclearance program described below available in a frequent traveler program would enhance efficiency and security at our land ports of 

entry.) 

INS and DOS will need to jointly recommend where such additional preinspection 

facilities should be located, as it would be impractical to undertake this procedure 

at every airport in the world. It also will be critical to clarify in advance with host 

countries any sovereignty issues that might arise when someone is to be arrested 

by U.S. officials working cooperatively with local authorities at the preinspection 

site who have the power to arrest and detain. Such cooperation should include assurances that suspected terrorists are not released because the host country authorities do not view the threat posed by the individual as seriously as do U.S. authorities. These programs also will raise numerous international law concerns in 

which the laws of the host country do not recognize certain laws and procedures followed under U.S. law. When a country cooperates in such preinspeciton programs, 

those inspected should benefit from expedited admission upon arrival to the U.S. 

The Border Security bill also contemplates creating programs that would enable 

foreign national travelers to the U.S. to submit voluntarily to preclearance procedures that the DOS and INS would establish to determine whether a traveler is admissible to the U.S. Such preclearance programs also would allow more time to review travelers’ information and compare such information with information contained in the databases of federal law enforcement agencies and the intelligence 

community. The INS already has established precursors to these programs. For example, the SENTRI program, which is utilized in the Dedicated Commuter Lanes 

on the southern border, require applicants to undergo a ten print FBI fingerprint 

check and various customs and INS clearances as well as a seven point inspection 

of the car enrolled in the program. These programs allow the federal agencies involved inspections to winnow the wheat from the chaff and focus their security reviews on higher risk applicants for entry. In addition, the NEXUS program (which 

is similar to, but less costly than SENTRI), is moving forward rapidly toward implementation on the northern border. The U.S. Customs Service also is testing a PASS 

program for commercial drivers that requires preinspections and provides for expedited clearance of cargo to enrollees. 

What is critical for these programs to succeed is that they be integrated. Enrolled 

frequent travelers should be able to use their issued preclearance documents at any 

port of entry. Otherwise, we duplicate efforts, costs, and staffing with no improved 

security benefits. In addition, the benefits to this enrollment should extend to entry 

into Mexico and Canada to improve effective border crossings and entries at air and 

seaports. 

Congress needs to be prepared to fund such preinspection and preclearance programs. As with other programs to increase security and deterrence, the federal government’s role is key because of the significant costs in setting up and maintaining 

these programs. As to preclearance programs, the benefits of a high volume of enrollees must be weighed when contemplating against pass through costs to the user. 

In this instance, it is in our national interest and will reduce overall costs through 

preventative planning to waive the fees to enroll in these preclearance programs. 

Finally, any preinspection/preclearance system must provide for mechanisms, including specially trained personnel, to assure that legitimate asylum seekers are afforded a meaningful opportunity to seek protection.

7. Passenger Manifest Lists 

The Border Security bill requires that all commercial vessels or aircraft coming 

to the U.S. from any place outside the country provide manifest information about 

each passenger, crew member, and other occupant of the vessel or aircraft to an immigration officer prior to arrival in the U.S. In addition, each vessel or aircraft departing from the U.S. for any destination outside the U.S. must provide manifest 

18

information before departure. The information that must be provided for each individual listed on the manifest is extensive and includes: complete name of the applicant, date of birth, citizenship, sex, passport number and country of issuance, country of residence, U.S. visa number, date, and place of issuance, when applicable, 

alien registration number, when applicable, U.S. address while in the U.S., and 

‘‘such other information the Attorney General . . . determines as being necessary 

for the identification of the persons transported and for the enforcement of the immigration laws and to protect safety and national security.’’ The manifests must be 

transmitted electronically by January 1, 2003. The bill also requires the President 

to conduct a study, within two years of enactment, on the feasibility of extending 

the new manifest requirements to land carriers transporting persons to the U.S. 

Mandating at the time of take-off that all airlines transmit passengers’ names to 

the designation airport to be checked against the look out list is an important security tool. Through their reservation systems, airlines know in advance who will be 

flying to the U.S. Transmitting the list in advance would give U.S. authorities the 

opportunity to compare the passenger list to the lookout lists, thereby preventing 

the entry of and/or apprehending those who should not be permitted to enter the 

U.S. Currently, about 75 percent of airlines transmit these lists. In addition, such 

lists would assist in the review of applicants for entry under the Visa Waiver Program prior to their departure from the point of origin, which would enhance the 

level of security related to program participants. 

AILA has concerns about the impact of the manifest requirement, if not efficiently 

implemented. The effectiveness of such a system depends on the INS having adequate technology and personnel to make swift and efficient use of the information. 

Preinspection and preclearance programs should facilitate the process for incoming 

travelers and reduce some of this burden, but appropriate staffing and procedures 

will be critical to success. In addition, if preinspections are conducted with meaningful safeguards to guarantee protection for asylum seekers, then the transmission of 

passenger lists should not compromise the safety of asylum seekers who may be en 

route to the U.S. 

AILA also believes that the requirement to submit manifest information prior to 

departure from the U.S. will be more problematic and will cause delays in departures and possible chaos at our nation’s airports. It will be critical to exempt our 

frequent travelers enrolled in preclearance programs from this process. In addition, 

we must be prepared to develop workable alternatives that meet both security and 

transportation concerns. If we are ever to effectuate exit control, it will be easier 

to test the principle at air and seaports. 

8. Entry-Exit Controls 

Congress needs to ensure adequate personnel and technological improvements at 

and between our ports of entry. The August 2001 GAO Report, ‘‘INS Southwest Border Strategy: Resource and Impact Issues Remain After Seven Years,’’ clearly identifies that security risks exist at both our northern and southern borders. The Border 

Security bill implements an integrated entry and exit data system included in the 

INS Data Management and Improvement Act of 2000 (Pub. L. No. 106–215) which 

provided for the system first contemplated by Section 110 of the 1996 immigration 

law, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 

(IIRAIRA) (Pub. L. No. 104–208). 

In developing this entry-exit system at points of entry into the U.S., it is important to recognize the implementation challenges and possible disruptions to our 

commerce likely to be caused by such a system. For instance, implementing Section 

110 at land ports is extremely problematic from infrastructure, staffing, and cost 

perspectives. In fact, many of our land ports have no place to expand to encompass 

outbound inspections. Furthermore, significant numbers of people would be involved. More than 400 million (about 80% of all inspections) are done annually at 

our land borders. About 800,000 border crossings are made daily between the U.S. 

and Mexico, and about 260,000 cross each day between the U.S. and Canada. A 

June 1998 report from the Senate Judiciary Committee, then chaired by Senator 

Orrin Hatch (R–UT), noted the catastrophic delays that would accompany the implementation of a Section 110 entry-exit system at land borders. For example, the report cited testimony from an earlier hearing by a witness who estimated that ‘‘assuming the most efficient and remarkable entry and exit procedures in the world 

that will take only 30 seconds per vehicle, and making the equally optimistic assumption that only half the vehicles have to go through the procedures, that would 

amount to an extra 3,750 minutes of additional processing time each day’’ at the 

Ambassador Bridge in Detroit. The witness then pointed out that there are only 

1,440 minutes to a day, which means that implementing a Section 110 entry-exit 

19

system at that land border port of entry would lead to a delay of more than 21⁄2

days. 

We also must recognize the limitations of such a system if we do not also enhance 

our intelligence capacity. The Senate report also noted that it is highly questionable 

if implementing Section 110 would ultimately provide limited, if any, assistance in 

prosecuting individual visa overstayers, and would have nothing to do with stopping 

terrorists or traffickers. An automated entry-exit control system’s database will in 

no way provide information as to which individuals might be engaging in terrorism 

or other unlawful activities. It would however have the potential of identifying suspicious travel patterns, if the individual utilized the same identity. We believe that 

the use of this system to track or locate terrorists or potential terrorists is not a 

realistic goal, and that our precious resources would be better spent on other aspects of this bill. 

9. Reforms to the Foreign Student Program 

The Border Security bill strengthens the monitoring aspects of the foreign student 

program provisions contained in the 1996 immigration laws, mandates the collection 

of additional information related to students, and requires the INS to periodically 

review schools authorized to admit foreign students to ensure that the schools are 

complying with record keeping and reporting requirements. If an institution or program fails to comply, its authorization to accept foreign students may be revoked. 

Specifically, the bill requires the Attorney General, in consultation with the Secretary of State, to establish an electronic means to monitor and verify the various 

steps involved in admitting foreign students to the U.S. such as: the issuance of documentation of acceptance of a foreign student by an educational institution or exchange visitor program; the transmittal of such documentation to the Department 

of State’s Bureau of Consular Affairs; visa issuance; the student’s admission to the 

U.S.; the registration and enrollment of the student in his or her institution or program; and any other relevant act such as changing schools or termination of studies 

or program participation. The bill also requires schools to notify the INS if a student 

has not reported for school more than 30 days after the deadline for registering for 

classes. 

Additional data that must be collected under the bill includes: the student’s date 

of entry, port of entry, date of school enrollment, date the student leaves school (e.g., 

graduates, quits), and the degree program or field of study. Student visa applicants 

also must provide additional information to the consular officer including their address, names and addresses of relatives, names of contacts in the country of residence who can verify information about the student visa applicant and previous 

work history, if any, including the names and addresses of employers. 

The Border Security bill also establishes an interim system to be used until the 

program included in the 1996 law is fully implemented. Under this temporary system, the State Department is prohibited from issuing student visas unless the agency has received electronic evidence of acceptance documentation from an approved 

academic or other institution and the consular officer has adequately reviewed the 

applicant’s visa record. Once a visa is issued, the Secretary of State must transmit 

to the INS notice that the visa has been issued, the INS must notify the academic 

institution that the alien has been admitted to the U.S., and the institution must 

notify the INS not later than 30 days after the class registration deadline should 

the alien fail to enroll. In addition, within 30 days of enactment, the INS must provide the State Department with a list of approved institutions authorized to receive 

nonimmigrants. 

Although AILA believes that foreign students are not the equivalent of terrorists, 

we support the efforts of the INS to ascertain a student’s compliance with their 

terms of entry to the U.S. We do not support the use of a student visa to enter the 

U.S. to achieve a non-education-related objective. We are concerned, however, that 

students not be subject to unmerited scrutiny in the application for visas. Our institutions of education are enhanced by the participation of foreign students and such 

institutions allow the U.S. to spread its message to other countries of the benefits 

of democracy and tolerance of ethnic and religious diversity. That message must 

continue to be delivered not only through such valuable efforts as the Peace Corps, 

but also through our educational institutions and foreign student programs. 

10. Other Important Provisions in S. 1749

The Enhanced Border Security Bill includes many other important provisions that 

merit bipartisan support. Of particular relevance to the southern border is this 

measure’s extension by one year of the deadline for border-crossers to acquire machine-readable laser visas from DOS. Although, the DOS started issuing laser visas 

in 1998 as a replacement for border crossing cards issued by the INS, prior to SepVerDate Jan 31 2003 23:01 Apr 08, 2003 Jkt 085885 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 E:\HR\OC\B885.XXX B885
20

tember 11, DOS was requesting an extension of the October 1, 2001 deadline for 

such replacements due to volume and processing delays. On October 1, the economic 

downturn caused by enhanced border inspections was further exacerbated by the inability of border crossing cardholders to enter border communities to shop. In addition, the INS gave no quarter to these border crossing cardholders by providing 

waivers for the laser visa requirement for such visitors. 

This treatment was applied to one of our most favored trading partners and to 

applicants who had gone through at least one prior document application with the 

U.S. government. In comparison, nonimmigrant applicants from Canada are visa exempt except in the E visa category. Some DOS officials now are stating that it 

should not be a problem if laser visa applicants, who have waited three to five 

months to get a laser visa appointment at a consulate, would have to wait a few 

more months. Border communities have responded loudly and clearly to this position: It will be a huge problem. Such a position ignores the realities of border society 

and economy in which each day’s events impact on the viability of the border. Border communities are symbiotic. Coming from a southern border community, I can 

state unequivocally that any relief that would give Mexicans who are low security 

risks and hold old border crossing cards the ability, based on their prior cards, to 

cross into a border community and be inspected at land ports of entry before their 

laser appointments would provide an economic life boat to border businesses. In the 

interim, old border crossing cardholders could be mandated to undergo a security 

check prior to entry to address any security-related concerns. 

WHAT HAS BEEN ACHIEVED SINCE SEPTEMBER 11

Since September 11, the status quo has undergone much change, with federal 

agencies (INS, Customs, Coast Guard and the other border agencies) coordinating 

and cooperating at unprecedented levels to make more effective the processes at the 

border both to protect our homeland and efficiently process legitimate trade and 

travel. In addition, our nation’s agreements with Canada and Mexico already are 

helping us to increase the security of all three countries. 

These initial efforts underscore the importance of coordination and cooperation 

among our federal agencies in the U.S. as well as in other countries and reinforce 

the need for the Border Security bill to reinforce, invigorate, and expand on these 

preliminary efforts. Some of these efforts are: 

• Additional Personnel at Our Ports of Entry: The INS detailed hundreds of inspectors and Border Patrol agents to the northern border and other ports of entry 

to enhance the inspection process and guard against unauthorized entries. Customs 

inspectors were sent to northern border ports of entry to make sure that they were 

staffed at all times by at least two agents. The Coast Guard sent additional patrols 

to the ports. Unfortunately, the INS and the U.S. Customs Service had difficulties 

implementing coordinated policies at ports of entry as to inspections issues, creating 

certain inefficiencies and agency disconnects.

• Enhanced Data Sharing by the Federal Agencies: On January 15, 2002, the INS 

was able to utilize the Consular Consolidated Database maintained by the DOS Bureau of Consular Affairs to help assess admissibility of applicants for entry to the 

U.S. In addition, the Customs Service enhanced the access of the INS and DOS to 

the Advance Passenger Information System, a database that includes information 

on arriving commercial air passengers. 

• Creation of the Foreign Terrorist Tracking Task Force: President Bush, in October 2001, created the Foreign Terrorist Tracking Task Force. Comprised of representatives from the FBI, INS, DOS, Customs Service, Secret Service, and the intelligence community, this task force shares information previously unavailable to 

the federal agencies and is charged with enhancing security by denying entry to terrorists and pursuing those already in the country. 

• ‘‘Smart Border’’ Agreement With Canada: In December 2001, the U.S. and Canada signed the ‘‘Smart Border Declaration,’’ which outlines a 30-point action plan 

through which both countries will collaborate to identify and address security risks 

‘‘while efficiently and effectively addressing the legitimate flow of people and goods 

back and forth across the Canada-U.S. border.’’ The declaration focuses on the secure flow of people, goods, and infrastructure, and on coordination and information 

sharing. 

• ‘‘Smart Border’’ Agreement With Mexico: During his recent trip to Mexico, 

President Bush and Mexican President Fox finalized a 22-point ‘‘U.S.-Mexico Border 

Partnership Action Plan.’’ This plan is a comprehensive attempt to reconcile postSeptember 11 security concerns with the need to keep commerce moving freely between the U.S. and its second largest trading partner. The ‘‘smart border’’ deal aims 

to facilitate the legitimate flow of people and commerce across our borders while 

21

screening out those who would threaten us. Among other things, the plan calls for 

the U.S. to pre-certify certain Mexican companies that would electronically seal 

their containers in Mexico and receive express processing treatment at the border. 

The plan also calls for a study of the possibility of creating express immigration 

lines at airports for people from the three NAFTA nations, and for Mexico and the 

U.S. to share information on those applying for visas to travel to either country. 

The two countries also are discussing: improved sharing of intelligence in order 

to thwart terrorists using Mexico to facilitate illegal entry into the U.S.; border 

crossing practices that facilitate and streamline the passage of legitimate people and 

cargo while identifying those that require more extensive screening; and intensified 

joint efforts to crack down on human trafficking. 

CONCLUSION

AILA strongly supports the speedy passage of the Enhanced Border Security and 

Visa Reform bill to allow the government agencies charged with addressing the critical needs of border and visa reform to be successful in efforts to enhance this nation’s security. We must proceed swiftly with the entire bill, or else drastically hamper our response to one of the most insidious challenges this country has faced.

Chairman KENNEDY. I will just ask a couple of questions. Those 

that think that we ought to wait on this until we have the final 

reorganization and restructuring of INS, what is your reaction to 

that? 

Ms. WALKER. Thank you, sir. My reaction to that is that it is ridiculous, bluntly. But respectfully, we have plenty of bills pending 

for people trying to figure out how to reorganize the INS. It has 

been going on for years. Nine-eleven is something that happened 

just recently that we have to address. Obviously, INS reorganization is something we have to deal with, but we also have to deal 

with hiring people down at our ports of entry, getting them up and 

running. It is going to take us over six months just to hire people. 

We have got to give our consular corps the appropriate types of 

technology to be able to interdict these people. We have got to be 

able to have them give an appropriate review, based on the intelligence that they will need, as Senator Feinstein so aptly noted earlier. And without doing so and waiting, we only harm ourselves. 

Where is the logic in that? 

Chairman KENNEDY. Just finally, you refer to this perimeter defense, which is something that may be out there down the road, in 

the future. We heard from our former governor and current Ambassador to Canada who thinks that having cooperation in terms of 

the total entry into North America, and hopefully extending that 

down into the South, to Mexico, could be important as sort of a 

first line of defense prior to people coming into Canada and then 

being able to come into the United States. 

Do you want to make just a brief comment? We are doing a study 

on that, but it is a matter, I think, of importance, looking down the 

road further. I would be interested, since you referenced it—not 

many people do—your reaction. 

Ms. WALKER. Yes, sir. Already, just think, we have established 

at least a baseline with Governor Ridge’s activities with Canada 

and Mexico, but what really makes a lot of sense is you can utilize 

that also to achieve effective commerce crossings, as well. If you 

are able to go ahead and have more security and more agreement 

between Canada, Mexico, and the United States on the individuals 

crossing back and forth amongst our borders, we are going to be 

able to effectuate entries to those countries, as well, as well as improve our interdictive efforts. 

22

Why would I not want to try to create a perimeter zone to further push back the person from possible entry to the United States 

by utilizing our trading partners? Again, it is a logical step. 

Chairman KENNEDY. It is a logical step, and the way you present 

it is compelling, but this is something that will take additional 

thinking on through. With this, we just begin that process, but I 

think there is a lot to that. 

Senator Brownback. 

Senator BROWNBACK. Thank you, Mr. Chairman, and thank you 

both as witnesses for being here and for pressing this forward. We 

are hopeful to be able to see quick action in the next week in the 

Senate and move this on to the President, because I think we really need to get it on through. 

I was in your area, El Paso, with the Attorney General, it has 

been a year ago, and we were at the INS detention facility and it 

was amazing to me. I asked the director how many different countries were represented at the detention facility in El Paso, Texas, 

and he said 59 different countries were represented. That is a little 

higher than I thought it would be, at 59. You could hold a pretty 

good global meeting with representatives from that many different 

countries. He said a number of people come in through Central 

America or other places and then take ground transportation on up 

to the border, which is building on the point of why we think we 

need a North American perimeter to try to back some of the problems down. 

Another point that I felt has been important in this is that we are such a large global economy as a country, $9 to $10 trillion 

GNP annually in this country. We get millions of people crossing 

our borders regularly as a key part of what our commerce is and 

our openness as a country. So the number of people that we are 

looking for that are coming to the United States to do us harm is 

a small number amongst millions. It is not a needle in a haystack, 

it is a needle in a hayfield. So we have got to really concentrate 

and hone in on where do we think the problem areas are, and that 

was the attempt with this bill. 

It is not financially possible, if it were even physically possible, 

for us to close the borders down, and we should not do that. But 

we need to be able to try to get at where those problems are, and 

that is why we have drafted this legislation the way we have to try 

to get at the problems as much and as effectively as we can. 

Do you see anything in here as a practicing lawyer and the head 

of the immigration bar that you look at and say, this is going to 

be particularly useful to us? In your years of practice and your 

work, you are saying, this is an area that we should have plugged 

years ago and I see that this is here and this is really going to help 

us now? 

Ms. WALKER. You know, the basic fundamental addition of inspectors and investigators provided by this bill is pivotal. We tend 

to think of immigration and security at our borders as being related to the Border Patrol, and aptly, it is, but we have not provided the focus on inspectors and investigators and the technology 

that they need. 

For example, why have all of our Mexican nationals get a new 

laser visa, which is supposed to be machine readable, and yet we 

23

do not have the scanners to read them and utilize the benefits of 

those cards at our ports of entry, which would also enable us to be 

able to start tracking entries. We could have already started that. 

So it is pivotal, those provisions, as well as since we have 

NAFTA already, it would have made sense to have as a part of 

NAFTA these security level concerns addressed at that point, and 

integration of those policies. 

Senator BROWNBACK. I think you covered it well, and that was 

an excellent point. 

MaryEllen, let me just say again, as the chairman did, thank you 

for being here. I have young children, we have five children, and 

just the idea of being there without one of the spouses would be 

a very difficult thing. Your courage in being here and representing 

the families that were hit so directly and so hard on September 11, 

I really appreciate that and God bless you for doing it. 

Ms. SALAMONE. Thank you. It is my honor. 

Chairman KENNEDY. Thank you. 

Senator Feinstein. 

Senator FEINSTEIN. Thanks, Mr. Chairman. 

I wanted to ask Ms. Walker a question. One of the things that 

has occurred to me in the nine-and-a-half years I have been on this 

is that we may well have, no matter how much we can modernize 

and improve the management of the agency, an agency that is dramatically overburdened. Let me just read you some figures. This is 

CRS. 

During 1998, this is the most recent year for which these data 

are available, a record 30.1 million non-immigrants entered the 

United States, and the overwhelming majority, 23 million, were 

tourists. Now, those are the visa waivers. Nobody knows where 

they are, whether they have left or not or what they are doing. 

In 1999, the Department of State issued 537,000 visas to foreign 

students, making up nine percent of the six million. In 1999, the 

Department of State identified 291 potential non-immigrants as inadmissible for security or terrorist concerns. Of that number, 101 

aliens seeking non-immigrant visas were specifically identified for 

terrorist activities, but 35 of them were able to overcome the ineligibility. 

Have you looked at this at all? I mean, you get overcome. And 

then you have, what is it, 350 million border crossings that are legally here. I mean, it is just hundreds of millions of people coming 

in and out of this nation all of the time. Now, that is great up to 

this point where we now have reason to believe that asymmetric 

warfare, the terrorist act, is really going to be the warfare of the 

future, perhaps for the next decade or more, and there is good evidence that that is going to be an ongoing concern. 

You are technically extraordinarily proficient. You know this 

area. What is your best advice to us? How do we manage that system? 

Ms. WALKER. The system, first of all, has to involve individuals 

who are accountable, and what I have seen in the past is that we 

have a good idea. We may not know how much it costs. We may 

not know how many people it takes. And we are not able to react 

effectively enough as developments occur to address those concerns. 

24

There has to be the flexibility to respond quickly and effectively, 

but also there has to be accountability. 

What I find the most frustrating, this is a ‘‘one bite of the elephant at a time’’ sort of thing to be able to even start, because I 

agree with you that it is overwhelming, the responsibility and the 

difficulty in dealing with it. But you have a lot of responsible people out there who want to do the right thing. You give them the 

tools, the direction, and then do follow-up from a Congressional 

audit or review and make sure that things are going accordingly. 

I must say that what I have seen in my 16-and-a-half years on 

the border is ideas come down, but not with clear directives, and 

also, there is no follow-up. Let us talk about, for example, just this 

small example of the laser visas for Mexican nationals. They are 

the most documented foreign nationals that we have to deal with 

on entry, and we decided that we needed a biometric card. That 

card already involves a digitized print. It already involves a 

digitized photograph. We were supposed to have scanners to be 

able to scan them on entry to more effectively enter. It was a twofor-one deal, improve commerce in entry, at the same time, improve 

security, and yet we have not moved forward with it. 

I find that inexcusable, and I lay the blame at a lot of different 

feet, but it does not do any good to lay blame right now. We have 

got to figure out what the problem is and answer it and hold people 

accountable. 

Senator FEINSTEIN. Can I ask you a question? 

Ms. WALKER. Yes, ma’am. 

Senator FEINSTEIN. One of the things that I have found is that 

the private sector management in terms of technology is much 

more sophisticated than the public sector management in terms of 

technology. Governments are usually civil service bureaucracies 

and heads of these bureaucracies are unable to bring in the freshest, best talent to put in managerial systems. 

One of the things I have been thinking of, whether it makes any 

sense to permit the Commissioner of Immigration to bring in a 

whole top-level coterie of the most efficient technologically adopt 

managers from the private sector. 

Ms. WALKER. I think any partnership of the private and public 

sector makes sense. Let us talk about the issue of unified port 

management, just in trying to get the Customs Service and the Immigration Service to work and play well together. Unified port 

management, which Senator Kyl is very familiar with with the Arizona Department of Transportation study that was conducted 

many years ago in his State, identified that you have more than 

one cook in the kitchen, basically, here with these agencies at these 

ports of entry, and in addition to that, if you manage to have community accountability and then one entity that is responsible and 

reactive to be able to implement these technologies, that we are 

more effective. 

So absolutely, any type of partnership that gives you the most 

talent would be effective. At least, that is my opinion. 

Senator FEINSTEIN. Thank you very much. Thanks, Mr. Chairman. 

Chairman KENNEDY. Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

25

September 11 in many ways brought out the best in America. It 

certainly brought out the best in a lot of Americans and especially 

so for many of the families of victims of the September 11 tragedy. 

For people like Ms. Salamone to be here today testifying so strongly in support of this legislation is just one more example of that 

strength and the way that people have found the best in themselves to help the entire nation prepare for the future and recover, 

bringing their unique and special experiences to this fight, and I 

very much appreciate your being here this morning, Ms. Salamone. 

Ms. SALAMONE. Thank you. Again, it is my honor. 

Senator KYL. Well, we appreciate it very much. It will help us 

in finally getting this legislation pushed through, I am sure. 

And to have someone as experienced as Ms. Walker here, with 

the wealth of the background you have in immigration matters 

supporting this legislation, and in a statement which you did not 

read but you have submitted for the record, which is very thorough, 

covers everything in the legislation with some critique of different 

provisions, but showing how they all work together in an integrated way to make this work, is also very important. 

Ms. Walker, you made the point, to talk about the funding of 

some things that are in this legislation that will have to be funded, 

and the lack of funding for some other projects that are already in 

the law, like the laser visa system, it made absolutely no sense to 

require the laser visas of our Mexican friends. A lot of my friends 

go down to Hermosillo, which is where they have to get the laser 

visa. They go through a lot of trouble, it costs them money, and 

then there is no machine to read it. 

We go to the INS and they say, well, we do not have the money. 

Well, did you ask for it? Not exactly. We talk to some of our friends 

here in the Congress, what about appropriating the money? Well, 

INS is a poor institution. It is just pouring more money down a 

black hole. Well, that is a real constructive solution to the problem. 

You point out something that is critical. We are going to have to 

fund this legislation. My view is that, yes, it is going to cost some 

money in the short run and I will lead the effort to get it funded. 

Those who say, Congress will never fund this and that is a reason 

to oppose it are wrong. We have no choice and I will lead the effort. 

I will join my colleagues in seeking the funding. 

But I think the irony is that, over time, the use of technology will 

actually result in a less-expensive system than the old-fashioned 

way that we have been doing it. I will make two points and then 

I would just ask you to comment. 

The thesis of your comments is that we have a dual task here, 

to enhance commerce, the millions of people that cross our border 

every day for legitimate purposes, and two, to stop those few who 

we would want to stop. That requires the application of technology. 

In fact, it cannot be done any other way. But we have held hearings in our subcommittee that demonstrates the technology that is 

available. It is relatively inexpensive, and over time, obviously, the 

cost of that technology would go down, in addition to which, someday, I am going to try to figure out how much the cost is for the 

delays just at the border between Arizona and Mexico. 

The Secretary of Energy from Michigan used to complain about 

two-minute delays between Canada and the United States. Two 

26

minutes? I said, if we could get it down to two hours, we would be 

pleased. Think of the lost time and productivity just by the delays. 

So your point about the delay of legitimate crossing for commerce 

and other reasons and stopping the terrorists and using the technology to enhance both is, I think, right on the mark. We will not 

only get the cost down, but we will save money as a result of speeding up the commerce, and we will eventually save money as a result of the diminished costs of the terrorists, such as that that occurred on September 11. 

Now, you make the point we have already lost seven months in 

recruiting and in addressing existing problems and talked about 

the importance of the investigators and the inspectors. I just wondered if you could explore that just a little bit more for those who 

are not familiar with the job that the inspectors and the investigators do. We tried hard to get more border agents on the border and 

we have a ways to go yet there. But we also are woefully inadequate in our inspectors and investigators. To some extent, more 

of them, well-trained, are going to be required to make part of our 

bill work. 

Ms. WALKER. Thank you, Senator Kyl. The inspectors represent 

the true dilemma of the Immigration Service. When we talk about 

that dichotomy between enforcement and benefits, where those two 

missions truly merge is with the inspectors’ function. They are out 

there dealing with hours being on the line inspecting passenger vehicles and whether or not someone is admissible and trying to also 

interdict drugs and then work with their compatriots with the Customs Service to go down and inspect the vehicle further for the 

drugs to seize them. And then you have got to deal with those pedestrians and applicants who are trying, for example, on our 

Southern border to enter the United States for a period of more 

than 72 hours or go beyond a 25-mile perimeter of the border, except in your State, 75 miles and one point, and that takes a lot of 

time. 

Another portion of that is they have to figure out whether or not 

people coming to seek asylum protection can go ahead and receive 

it, as they should when they are qualified. They have got to deal 

with, in addition to that, processing the final entry for people coming in after being approved for immigrant visas. They have got to 

deal with that, also. 

They have got a panoply of tasks that they have to deal with and 

are not compensated as well as other members of the INS workforce. They have got more burden on their back than just about any 

other portion of our INS group of workforce, so why are we not recognizing that? It makes absolutely no sense. 

From an investigator’s perspective, those are the people that are 

trying to investigate and interdict smuggling rings. They are trying 

to follow up on people who have over-stayed, people who have violated status, to track down people who have not gone ahead and 

presented themselves for removal from the United States. We are 

doing that with 2,000 people? There had better be super-human efforts to be able to perform their tasks. I expect a lot out of them, 

but I do not think it is realistic to expect that much. 

27

So I would go beyond 200 that is provided in this bill if I could, 

but it is a start and it is a valid one, it is a reasoned one, and it 

is a long-needed one. 

Senator KYL. Thank you very much. We will need a lot more and 

I hope you will be able to help us in our request for the funding 

to back up the bill once we get it passed. 

Ms. WALKER. It would be my privilege. 

Senator KYL. Thank you very much, both of you. 

Chairman KENNEDY. Thank you very much. As I understand, 

your sense of the balance between sort of the law enforcement and 

the openness which you get, do you think we have done this about 

as well as we could? What is your reaction? 

Ms. WALKER. Senator Kennedy, you have indicated in this bill 

that all of these elements are important, but what also will be critical is your ability to monitor how this is implemented. 

Chairman KENNEDY. All right, good. Fair enough. 

Ms. WALKER. Hold their feet to the fire. 

Chairman KENNEDY. That is very helpful. We are going to look 

forward to hearing from you, because we are going to monitor it 

and we are going to call upon you as this moves along to give us 

your best judgment as to how it is being implemented, as well, and 

we thank you very, very much. 

We thank you, Ms. Salamone, as well. We are very grateful to 

you for taking the time and being here. It is a wonderful thing that 

you are doing. There are 149 families in Massachusetts, as well, 

and I know how proud they would be of your presence here. Thank 

you very much. 

We will excuse both of you at this time. 

Ms. WALKER. Thank you very much. 

Ms. SALAMONE. Thank you. 

Chairman KENNEDY. Our final witness is Senator Robert Byrd, 

who is the Chairman of the Appropriations Committee and has 

taken a deep interest in the issues of border security and homeland 

security. Many of us have worked with him on these issues and we 

are very, very grateful for his presence. I have had the good opportunity to work with him on the whole issue on bioterrorism with 

Senator Frist. He had the chance to come before the committee and 

also visit and talk with him about how we were going to deal with 

those particular kinds of challenges affecting American security. 

He has been one in the Senate on bringing together the range 

of homeland security issues that has given a very, very high priority to this, as well as a number of issues, and he has followed 

the development of this legislation and is always interested and 

has been involved generally in the matters of the committee. We 

are very grateful for his presence here. 

We have been joined by Senator Cantwell, as well, and we will 

look forward to hearing from him. 

Senator Byrd, we are very appreciative of your joining with us 

here this morning.

STATEMENT OF HON. ROBERT C. BYRD, A U.S. SENATOR FROM 

THE STATE OF WEST VIRGINIA 

Senator BYRD. Thank you, Senator Kennedy. I was on this committee many years ago with you and I remember those days. I had 

28

a great deal of pleasure. We had some tense hearings in those 

days. As I recall, we did not have any five-minute rules. We pursued a line of questioning until we were finished. 

Chairman KENNEDY. I am not sure whether you were here when 

I was here. At the time Sam Ervin was here, the consideration of 

the 1964 Civil Rights Act, and Attorney General Robert Kennedy 

was in that seat there and Sam Ervin questioned him for two-anda-half days—two-and-a-half days before it became my turn to question after that. There were advantages at that time in terms of developing a thorough record, but I am not as interested in following 

the clock. You take whatever time that you desire. 

Senator BYRD. Thank you. Mr. Chairman, members of the committee, I thank you for inviting me to testify before your subcommittee today to share my thoughts on border security and the 

Enhanced Border Security and Visa Entry Reform Act. 

I applaud the subcommittee for initiating a long overdue debate 

on the security of our nation’s borders. The need for such a debate 

is unquestionable. We ought to have a debate. That was one reason 

why I did not give my unanimous consent to Senators who urged 

me to give unanimous consent to the passage of this bill at the 

close of the last session. There needs to be debate. 

The September 11 attacks showcased the gaps in our border defenses. Each of the 19 hijackers involved in the September 11 attacks was granted a visa to enter our country by a U.S. consulate 

abroad. Three of the hijackers lived undetected in the United 

States for months after their visas had expired. Six months after 

the September 11 attacks, the INS was still processing paperwork 

for two of the terrorists who piloted planes into the World Trade 

Center towers. I firmly believe that the Senate needs to pass legislation to tighten our immigration and border security laws. 

I devoted a large amount of my time and resources last fall to 

that very goal. I crafted a $15 billion homeland defense package as 

part of the economic stimulus bill the Senate considered last November. That homeland defense package provided $1.1 billion for 

border security initiatives, many of which are included in the border security bill that we are discussing today. Under a Presidential 

veto threat—let me underline that, under a veto threat by President Bush, those funds were removed from the economic stimulus 

package by a partisan vote on a budgetary point of order, and every 

Republican on this committee supported that point of order to 

knock out that money. Not a single Republican stood with us in my 

effort to fund border security then and there, not one. 

After the $15 billion homeland defense package was removed 

from the stimulus bill, I came back. I offered a $7.5 billion homeland defense package. Of that amount, $591 million was devoted to 

border security initiatives, many of which are included in this subcommittee’s border security bill. Once again, under the threat of a 

veto by President Bush, those funds were removed, this time from 

the fiscal year 2002 defense appropriations bill by a partisan vote 

on a budgetary point of order, a 60-vote point of order, and every 

Republican on this committee voted to knock that money out at 

that time. Because that point of order—we were not able to get the 

60 votes to override it because the Republicans to the man and 

29

woman voted against it. We could have done things then. But every 

Republican on this committee voted against us. 

Make no mistake about it, I understand that additional resources 

are required and I tried to provide them to secure our borders, but 

when a unanimous consent request was circulated in the waning 

hours of the first session of this Congress to take up and to pass 

this subcommittee’s bill, I was forced to object. Now, I was criticized across the country for holding up border security, holding up 

border security. When I tried to get money before we went out of 

session, not a single Republican on this committee supported me, 

not one. 

At the time, I was told that a window of opportunity had opened 

to pass this legislation and that in the aftermath of the September 

11 attacks, a united coalition, Democrats and Republicans, would 

support this authorization bill. Yes, they were willing to support 

the authorization bill, good to pass that, pass it by unanimous consent, go back home and say we have taken care of the problem. We 

passed an authorization bill. But not one, not one Republican—I 

am sorry to have to be so strong in my statement here in this regard. I very seldom criticize members of the other party, but I 

think I have a right to in this instance. 

I fought the fight then. I tried to get money then, but every Republican on this committee voted against that money. They supported that 60-vote point of order. They could have had the money 

then. No, they were strong on getting Senator Byrd to go along 

with the unanimous consent to pass this authorization bill, but 

they would not back us up when it came to voting for the money, 

and their President, our President, my President threatened to veto 

anything over $40 billion. We passed a $40 billion appropriation bill within three days of 

that horrendous, horrific, savage attack on the Twin Towers. Within three days, we passed $40 billion. The administration wanted 

$20 billion. We worked it up to $40 billion, and then we were hung 

on our own petard. When it came to trying to get one thin dime 

over that $40 billion, the administration threatened to veto it and 

the Republicans raised the 60-vote point of order and the Republicans voted against that money then. 

That is one reason, Mr. Chairman and members of the committee, I try to speak respectfully to all members. I hold all members in respect, I always have. I have been here 50 years. I was 

taught a long time ago to respect other members and respect their 

feelings. I have got to tell you, I have to speak with some feeling. 

I was drawn and quartered when I tried to get more money for this 

very purpose last fall, and then some of the members of this committee implored me, pleaded with me to agree to unanimous consent to pass this authorization bill. They could go home then. They 

could say, oh, yes, we passed that. 

But when it comes to the money, I wanted to face these Republicans and say, are you going to vote for the money? As an appropriator, I have a right to know and I have a right to be concerned. 

And I tried, I tried, I tried and this President threatened to veto 

one dime, one dollar over the $40 billion. 

Chickens have a way of coming home to roost. But the so-called 

coalition split twice last year, in November and December, when it 

30

came time to appropriate the money. When it came time to put the 

money on the barrelhead, they were not there. 

What is more, in circulating that unanimous consent request, 

Senators who do not sit on this subcommittee and had no voice in 

crafting this border security bill were being asked to pass it without debate, without amendment, and without any action by the Judiciary Committee. That is an egregious way for the Senate to conduct its business and I am not for it. 

I have been around here 50 years. The Republicans were in control when I came here. Joe Martin was in control of the House. 

John Tabor was in control of the Appropriations Committee in the 

House, John Tabor of New York. They would turn over in their 

grave today if they knew what is going on now. 

Passing bills without debate, important bills, far-reaching bills, 

bills that are going to cost money? Nobody on this committee, not 

one person on this committee today can tell me how much money 

this bill is going to cost, not one. When the Senate passes legislation without debate and without amendment, we forego our responsibility to be a salutary check on the government. While debate and 

amendments can be limited or even prohibited in the House, the 

Senate is the only body that has the procedural means to question, 

examine, and discuss at length every measure that comes before it. 

In the Federalist Paper No. 62, James Madison wrote that ‘‘a defect to be supplied by a Senate lies in a want of due acquaintance 

with the objects and principles of legislation. What indeed are all 

the repealing, explaining, and amending laws which fill and disgrace our voluminous code but so may monuments of deficient wisdom.’’

Only by offering and debating amendments and by voting on the 

underlying legislation can the Senate work to ensure that the Congress does not act with deficient wisdom. To do less is to fail in our 

duty to educate and inform the public about matters which affect 

their lives, the people’s lives. 

If we forego a national debate about our border defenses in order 

to pass legislation through a fleeting window of opportunity, as I 

was told, as I was beseeched, as I was implored, as I was importuned to do last December, a fleeting window of opportunity, we 

risk failing to explain and examine important details that could improve the legislation. 

I heard on some of the radio talk shows around the country that 

I was holding up border security, that I was holding up border security. I thought we ought to have a debate on this bill. Let the 

American people in on this window. Let them hear the details of 

it. 

This bill, if it is to be successful, will require the support of the 

Congress and the American people over the long haul. It will also 

require, according to the INS, if we can believe them, billions of 

dollars, although no one knows its true cost because the Congressional Budget Office never had to provide a cost estimate as a part 

of the committee process. 

If the Senate passes this legislation by unanimous consent, 

which it will not, without the benefit of public debate, how can the 

American people, who ultimately will have to foot the cost of the 

bill, be expected to support the long-term financial commitments 

31

that this legislation would require? And where will the administration stand? Where will the President stand then? 

Mr. Chairman, the lapses in our border security extend well beyond the problems identified by the pending bills. Part of the problem is that our border security policies are driven by factors other 

than homeland defense. Too often, the safety of the American people within their own borders has taken a back seat to politics. 

We need only look to the 1996 Illegal Immigration Reform and 

Immigrant Responsibility Act to see how border security initiatives, 

such as the integrated exit/entry system, a tighter visa waiver program, and the implementation of the foreign student visa monitoring program have been scaled back or delayed to accommodate 

trade, commerce, diplomatic concerns. The administration’s proposal to revise the Section 245(i) amnesty is only the latest example of how quickly we fail to integrate new border security concerns 

into older policies. 

Similarly, this Congress is quick to pass legislation that will 

place new requirements, new deadlines on the INS without giving 

adequate consideration to whether that agency is equipped to meet 

those mandates. The inevitable result is that the Congress will 

later have to weaken the mandate or roll back the deadline when 

the INS fails to comply with the law. Considering the INS’s most 

recent debacles and its apparent inability to handle its current 

workload, I suggest that before we task that agency with additional 

responsibilities and with meeting additional deadlines, we should 

first try to reach some sort of consensus about that agency’s organizational structure. 

So far, the administration has proposed two seemingly contradictory INS restructuring plans. The first plan would split the INS 

into an enforcement agency and a separate service agency, and the 

second would consolidate the INS and the Customs Service within 

the Justice Department. 

The House Judiciary Committee marked up an INS restructuring 

plan just a few days ago, this week, I believe. As I understand it, 

Chairman Kennedy and Senator Brownback are crafting an INS restructuring plan, as well, and that is to say nothing of the fact that 

at least two bills have been introduced in the Congress that consolidate the Border Patrol functions of the INS within a Homeland 

Defense Department or agency. 

With all of these organizational plans circulating through the 

halls of Congress, it makes little sense to me that the Senate today 

will begin consideration of a border security bill that places new 

mandates on the INS without addressing how that agency should 

be structured. Mr. Chairman, fixing the holes in our border defenses will require more than an interoperable database system, 

even though that is needed. I am all for that. And biometric identifiers, I am all for them. While they undoubtedly are needed, these 

initiatives are no panacea for border defense. 

We must adjust our mindset about border security to reflect the 

realities of September 11. We need to consider the funding changes 

which may be necessary in light of a different organizational structure of our border defenses. We need to acknowledge that a longterm commitment of resources is necessary if we are to close the 

holes that were exposed by the September 11 attack. We cannot 

32

achieve these goals without a comprehensive debate, and we certainly cannot achieve them if we pass legislation by unanimous 

consent. 

We risk the loss of confidence of the American people if we enact 

deadlines that we know will be breached and technology that may 

still be in the prototype stage. Another border incident coming on 

the heels of a bill that has been hailed as a panacea will not help 

to sustain public support for the expenditures which will be necessary. That is where the rubber will hit the road, the expenditures 

that will be necessary to repair our border ills. 

I thank Senators Kennedy, Brownback, Feinstein, and Kyl for 

authoring this legislation. It is a start. It at least is going to have 

some debate. But I am hopeful that the bill’s proponents understand that this legislation is not the final answer to what ails our 

border defenses. Meeting the deadlines and requirements set out in 

this bill will require their continued support for large amounts of 

funding this year and in future years, and without those funds and 

without the continued support of Senators on both sides of the 

aisle, this bill is just an empty promise. 

Mr. Chairman, I thank you. 

[The prepared statement of Senator Byrd follows:]

TESTIMONY BY SENATOR ROBERT C. BYRD

Chairman Kennedy, Senator Brownback, and members of the Immigration Subcommittee, I thank you for inviting me to testify before your Subcommittee today 

to share my thoughts on border security and the Enhanced Border Security and 

Visa Entry Reform Act. 

I applaud the Subcommittee for initiating a long-overdue debate on the security 

of our nation’s borders. The need for such a debate is unquestionable. 

The September 11 attacks showcased the gaps in our border defenses. Each of the 

19 hijackers involved in the September 11 attacks was granted a visa to enter our 

country by a U.S. consulate abroad. Three of the hijackers lived undetected in the 

United States for months after their visas had expired. Six months after the September 11 attacks, the INS was still processing paperwork for two of the terrorists 

who piloted planes into the World Trade Center towers. 

I firmly believe that the Senate needs to pass legislation to tighten our immigration and border security laws. 

I devoted a large amount of my time and resources last fall to that goal. I crafted 

a $15 billion homeland defense package as part of the economic stimulus bill the 

Senate considered last November. That homeland defense package provided $1.1 billion for border security initiatives, many of which are included in the border security bill we are discussing today. 

Under a presidential veto threat, those funds were removed from the economic 

stimulus package by a partisan vote on a budgetary point of order. 

After the $15 billion homeland defense package was removed from the stimulus 

bill, I offered a $7.5 billion homeland defense package. Of that amount, $591 million 

was devoted to border security initiatives, many of which are included in this Subcommittee’s border security bill. 

Once again, under the threat of a presidential veto, those funds were removed, 

this time from the Fiscal Year 2002 Defense Appropriations bill, by a partisan vote 

on a budgetary point of order. 

Make no mistake, I understand that additional resources are required to secure 

our borders. Nevertheless, when a unanimous consent request was circulated, in the 

waning hours of the first session of this Congress, to take up and to pass this Subcommittee’s bill, I was forced to object. 

At the time, I was told that a window of opportunity had opened to pass this legislation, and that, in the aftermath of the September 11 attacks, a united coalition—

Democrats and Republicans—would support this authorization bill. 

But the so-called coalition split twice last year, in November and December, when 

it came to appropriate the necessary funds. 

What’s more, in circulating that unanimous consent request, Senators who do not 

sit on this Subcommittee and had no voice in crafting this border security bill, were 

33

being asked to pass it—without debate, without amendments, and without any action by the Judiciary Committee. 

That is an egregious way for the Senate to conduct its business. When the Senate 

passes legislation—without debate and without amendments—we forgo our responsibility to be a salutary check on the government. While debate and amendments 

can be limited or even prohibited in the House, the Senate is the only body that 

has the procedural means to question, examine, and discuss at length every measure that comes before it. 

In The Federalist Paper #62, James Madison wrote that a ‘‘defect to be supplied 

by a senate lies in a want of due acquaintance with the objects and principles of 

legislation . . . What indeed are all the repealing, explaining, and amending laws, 

which fill and disgrace our voluminous codes, but so many monuments of deficient 

wisdom?’’

Only by offering and debating amendments, and by voting on the underlying legislation, can the Senate work to ensure that the Congress does not act with ‘‘deficient 

wisdom.’’ To do less is to fail in our duty to educate and inform the public about 

matters which affect their lives. 

If we forgo a national debate about our border defenses in order to pass legislation 

through a fleeting window of opportunity, we risk failing to explain and examine 

important details that could improve the legislation. 

This bill, if it is to be successful, will require the support of the Congress and the 

American people over the long haul. It will also require, according to the INS, billions of dollars—although, no one knows its true cost because the Congressional 

Budget Office never had to provide a cost estimate as part of the Committee process. 

If the Senate passes this legislation by unanimous consent—without the benefit of 

public debate—how can the American people, who ultimately will have to foot the 

cost of this bill, be expected to support the long-term financial commitment that this 

legislation will require? 

Mr. Chairman, the lapses in our border security extend well beyond the problems 

identified by the pending bill. Part of the problem, is that our border security policies are driven by factors other than homeland defense. Too often, the safety of the 

American people within their own borders has taken a back seat to such issues as 

trade, commerce, tourism, and diplomacy and politics. 

We need only look to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act to see how border security initiatives—such as the integrated exit/

entry system, a tighter Visa Waiver Program, and the implementation of a foreign 

student visa monitoring program—have been scaled back or delayed to accommodate 

trade, commerce, and diplomatic concerns. The Administration’s proposal to revive 

the Section 245(I) amnesty is only the latest example of how quickly we fail to integrate new border security concerns into older policies. 

Similarly, this Congress is quick to pass legislation that will place new requirements and deadlines on the INS without giving adequate consideration to whether 

that agency is equipped to meet those mandates. The inevitable result is that the 

Congress will later have to weaken the mandate or roll back the deadline when the 

INS fails to comply with the law. 

Considering the INS’ most recent debacles, and its apparent inability to handle 

its current workload, I suggest that, before we task that agency with additional responsibilities and with meeting additional deadlines, we should first try to reach 

some sort of consensus about its organizational structure. 

So far, the Administration has proposed two seemingly contradictory INS restructuring plans. The first plan would split the INS into an enforcement agency and a 

separate service agency, and, the second, would consolidate the INS and the Customs Service within the Justice Department. 

The House Judiciary Committee marked up an INS restructuring plan this week 

(April 10). As I understand it, Chairman Kennedy and Senator Brownback are 

crafting an INS restructuring plan as well. And that’s to say nothing of the fact that 

at least two bills have been introduced in the Congress that consolidate the border 

patrol functions of the INS within a Homeland Defense Department or Agency. 

With all of these organizational plans circulating through the halls of Congress, 

it makes little sense to me that the Senate today will begin consideration of a border 

security bill that places new mandates on the INS without addressing how that 

agency should be structured. 

Mr. Chairman, fixing the holes in our border defenses will require more than an 

interoperable database system and biometric identifiers. While they undoubtedly are 

needed, these initiatives are no panacea for border defense. 

We must adjust our mind set about border security to reflect the realities of September 11. We need to consider the funding changes which may be necessary in 

light of a different organizational structure of our border defenses. We need to acVerDate Jan 31 2003 23:01 Apr 08, 2003 Jkt 085885 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 E:\HR\OC\B885.XXX B885
34

knowledge that a long-term commitment of resources is necessary if we are to close 

the holes that were exposed by the September 11 attacks. We cannot achieve these 

goals without a comprehensive debate, and we certainly cannot achieve them if we 

pass legislation by unanimous consent. 

We risk the loss of confidence of the people if we enact deadlines that we know 

will be breached and tout technology that may still be in the prototype stage. Another border incident coming on the heels of a bill that has been hailed as a panacea 

will not help to sustain public support for the expenditures which will be necessary 

to repair our border ills. 

I thank Senators Kennedy, Brownback, Feinstein, and Kyl for authoring this legislation, but I am hopeful that this bill’s proponents understand that this legislation 

is not the final answer to what ails our border defenses. Meeting the deadlines and 

requirements set out in this bill will require their continued support for larger 

amounts of funding this year and in future years. Without those funds and without 

their continued support, this bill is just an empty promise.

Chairman KENNEDY. I thank you very much, Senator Byrd. I remember very clearly the efforts that were made in terms of the 

homeland security debate last year and I think we have, hopefully, 

certainly in some important areas, we have been able to move on. 

I know that has been true in the bioterrorism area and some of the 

other areas. We are hopeful we can move on in this area. 

As I have mentioned with you privately, and I have not been able 

to convince you of the fact, we are looking at the general restructuring of the INS. I personally have introduced in the 105th and 

107th Congress the restructuring that had been recommended by 

the Jordan Commission. The Jordan Commission had some of the 

most distinguished men and women who studied this, basically a 

nonpartisan, bipartisan group. Congresswoman Jordan in the twilight of her life, really, devoted an enormous amount of time. It is 

not the end-all, but it was a very important start and it is one 

which I personally believe is the basis for the debate and discussion on that. We have had hearings in the past. We are going to 

be back having hearings in the future on it. 

We believe that given the kinds of problems that we are facing 

out there with the border security, for example, under the visa 

waiver now, there are 22 million people that can come in here, and 

as our previous witnesses said, we do not track whether they are 

leaving or not. That is happening today. It will not when this bill 

passes. It will take time to get up, get the professional people, but 

we are moving along on that today. 

We still do not have the CIA giving to the FBI the important intelligence information in terms of granting waivers in different 

parts of the world. There is a general agreement, but not the specificity that we have worked out with the different agencies to make 

sure that even a more highly trained consular corps reviewing the 

latest information may be able to make sure that our borders are 

going to be more secure. We believe this legislation can be helpful. 

We have worked very closely with the Commerce Committee, 

Senator Hollings and other appropriators interested in that, Judd 

Gregg, for example, to make sure that what is going to be done 

with these computers here is going to be coordinated with what is 

happening now currently in the FBI. We have made that effort. 

Lord only knows, there may be other ideas from our members who 

follow these closely, yourself included. I know how you have followed these issues on the computers and computer training and the 

rest. But we have made that an important interoperability. 

35

The list goes on, the biometrics issues, which you are very familiar with. I know that. I have talked to you about it, to ensure the 

utilization of it. And then the tracking that we have. We have 

26,000 educational institutions that can grant student visas today. 

That is happening today. We are closing that loophole. We are closing that loophole in this legislation. 

I believe that we can do that and these other items without waiting for the questions about how the arrangements are going to be 

made between Customs, the border, and terms of the INS. We have 

tried to make this a very lean, tight program that is responsive to 

professionals, as we have just heard, who think that immediate 

steps can make some difference in this. 

You and I have talked about this a number of times, though I 

am not sure that I am being any more persuasive with you. We do 

think we have some overall budget figures. Our estimate is $1.2 

billion this year, $3.2 billion over a three-year period, and I believe 

about $750 million of that is actually included in the administration’s kind of request—$743 million—but we would be delighted to 

go over these in detail with your Appropriations Committee. We 

are going to obviously have to, in any event. We welcome that kind 

of exchange. 

We have some additional areas of priority beyond what the ad- ministration had at the $743 million that brings us up to the $1.2 

billion, which includes developing and sharing the intelligence law 

enforcement with the INS, State, and the data system. It is primarily the upgrading, the sort of Border Patrol inspectors, training, 

and we will go over that. I will put this in the record and would 

welcome your response, obviously, because your committee is going 

to have to make the judgments as to whether these are justified. 

I want to just say that I certainly am one that was supporting 

your increases and I will let others speak to it. We want to work 

with you on the funding that is going to be necessary. We will welcome that. 

We thank you for raising these issues. I think because you have 

raised them, hopefully, our members have a better understanding 

and awareness of what we are trying to do and the steps that we 

are trying to take and the American people do, as well. I believe 

that there is an urgency about this legislation which is special and 

that is why I and my colleagues have pressed our leadership to 

bring it to the Senate floor this afternoon. 

Senator BROWNBACK. Mr. Chairman. 

Chairman KENNEDY. Senator Brownback. 

Senator BROWNBACK. Thank you, Mr. Chairman. Thank you, 

Senator Byrd, for being here today and for testifying and testifying 

strongly and clearly. You have stated some things with great 

strength and clarity and I think a number of them deserve a response. With all due respect to the chairman and to Chairman 

Byrd, I would like to respond to those with the respect that is due 

the chairman of the Appropriations Committee. 

Senator, you have put forward a number of questions I would 

like to respond to in order. Senator Kennedy has put forward the 

cost of the overall bill. Several of those figures, of the total cost he 

has articulated, the first year cost, and the amount of money that 

is built into the current Bush budget. You had requested $3.1 bilVerDate Jan 31 2003 23:01 Apr 08, 2003 Jkt 085885 PO 00000 Frm 00039 Fmt 6633 Sfmt 6602 E:\HR\OC\B885.XXX B885
36

lion total cost of the bill, $1.18 billion this year cost, currently built 

into the Bush budget, $743 million to implement this bill. I think 

those are well deserved and the Appropriations Committee needs 

to know what those numbers are, to be able to have those to articulate that. We need to know those before we pass an authorization 

so that you would have that information and we would have that 

information, it would be available. 

You made great strength in the point about bringing forward the 

additional funding that you had put forward for homeland security 

last year, which was applaudable on your part to bring that forward then. As you noted and as we did last fall, we passed already 

$40 billion additional after the September 11 attack quite rapidly, 

$40 billion, a very large sum of money that was for the implementation and the efforts to deal with the terrorist attack, to deal with 

the efforts in Afghanistan. That was a substantial sum of money 

by anybody’s regard and the administration felt at that time, and 

I agreed with the administration at that time, that we should digest that and that issue and that amount of funding first before we 

would look at other tranches to be brought on forward. The administration——

Senator BYRD. How is that such a partisan issue, Senator? Why 

was it so partisan? 

Senator BROWNBACK. Why did the Democrats not vote with the 

President at that time? He was saying that——

Senator BYRD. We gave him $40 billion in three days. 

Senator BROWNBACK. That is the point. He was saying, we have 

$40 billion to be able to work with in dealing with. They wanted 

some more time to be able to figure out what else was actually 

needed. 

Senator BYRD. And they are asking in the supplemental appropriation bills for the same amount of money, practically, that they 

opposed back then. 

Senator BROWNBACK. And they may be looking at this time and 

saying, Senator Byrd had much of it right. Some of it, we do not 

agree in the areas that he wants to go in. I cannot speak for the 

administration on that point. At the time, what they were saying, 

that I agreed with, was that $40 billion was a substantial sum of 

money to work with——

Senator BYRD. It was. 

Senator BROWNBACK [continuing]. And that they wanted to be 

able to work with that first and then to determine what else was 

needed after the implementation and the spending of that. 

Senator BYRD. And the Senator——

Senator BROWNBACK. I think that is a wise course of action, just 

to take the effort to really see, because that is such a large quantity of additional resources. So I thought that was a persuasive, 

and actually quite a prudent approach to take, because this longterm is going to be a war on terrorism. This is going to take us 

some time and we do not want to spend all the money up front 

without really thinking, where is it we are going? We were not sure 

at that time exactly where the war on terrorism might take us. 

Senator BYRD. But Senator, I hope that you will lead your side 

to support the appropriations in the future for this and other imVerDate Jan 31 2003 23:01 Apr 08, 2003 Jkt 085885 PO 00000 Frm 00040 Fmt 6633 Sfmt 6602 E:\HR\OC\B885.XXX B885
37

portant matters. We had a political vote and your side of the aisle 

voted like a solid wall against it. 

Senator BROWNBACK. As yours voted the other way. 

Senator BYRD. Yes, because we were looking out for the security 

of the American people. 

Senator BROWNBACK. Well——

Senator BYRD. I am an appropriator, and we——

Senator BROWNBACK. If I could——

Senator BYRD [continuing]. And we had good justification and we 

stated them as to why we needed more money then. But you voted 

against it——

Senator BROWNBACK. The administration is the one—yes, and 

the administration is the one that has to appropriately spend that 

money and they were saying at the time, we have $40 billion additional to work with in this area. We want some time to think 

through what else it is before we spend all of the resources on 

down. 

Senator BYRD. Well, Senator, I——

Senator BROWNBACK. I am hopeful that at this point in time, we 

can take appropriate steps to gather and get the resources that are 

needed, and you may have heard Senator Kyl before you came in 

saying that he would help in the effort to get the border security 

funds and I will be very supportive of that, as well. We have now 

had the time to be able to think about this and look and here is 

what we need to do. 

Senator BYRD. But Senator, you are one of the Senators who 

pressed me hard last year before the Congress adjourned to pass 

this bill by unanimous consent. 

Senator BROWNBACK. Yes. 

Senator BYRD. And you are one of the Senators who voted 

against appropriations for border security. 

Senator BROWNBACK. I voted for——

Senator BYRD. You cannot deny it. 

Senator BROWNBACK. I voted for——

Senator BYRD. You have got it on the record. 

Senator BROWNBACK. And I voted for the $40 billion additional 

dollars. 

Senator BYRD. Oh, yes. We all voted for that. 

Senator BROWNBACK. And I do not deny that, as well. I voted $40 

billion, and I think this is a prudent course to follow, a prudent 

course to follow. 

Senator BYRD. Well, let me say this to you, Senator. You are on 

the committee. I am not. But if you expect to close a loophole, if 

you expect to close the loophole, if we pass the appropriations and 

if the INS can meet our mandates, we will if we pass the appropriations needed and if the INS can meet the mandate. I hope you 

will be there voting for the appropriations when we need you. 

Senator BROWNBACK. On that issue, I will be, and the figure is, 

as I mentioned, $1.18 billion for this year. I do not mean to be so 

direct and confrontational with the chairman of the Appropriations 

Committee, but your comments have been very direct and I think 

they deserve a direct response. 

Senator BYRD. Absolutely. I stood on the firing line over there 

and I took the criticism, and I heard the talk shows around the 

38

country saying that Senator Byrd is holding up the border security 

bill. I do not know who started that junk. I was not holding it up. 

I just wanted the American people to hear the debates and I wanted Senators to have an opportunity to offer amendments, and I did 

a service to the Senate. I really did you a service when I held that 

up. To pass a mammoth bill, a far-reaching bill—we do not know 

the costs of it even today—by unanimous consent is a charade. 

That is a joke. I have no apologies for holding it up. 

Now, I may support this bill, depending on what it looks like 

when we come to vote, but I want to thank the chairman and I 

want to thank all of you for finally having at least one hearing, and 

certainly for your courtesy in inviting me to come. 

Senator BROWNBACK. Mr. Chairman, in continuing on this, and 

again, I mean to be very respectful to Senator Byrd for all he has 

done for this country, last fall was an extraordinary period of time 

for this country. I do not think any of us would deny that. We 

passed rapidly several pieces of legislation last fall, some without 

any hearings whatsoever. 

I recall vividly the Friday of the week of September 11. We 

passed legislation giving the President the authority to move forward on attacks in Afghanistan, a strong piece of legislation, and 

I was——

Senator BYRD. Sometimes we can act in too great a hurry, Senator. 

Senator BROWNBACK. I understand, but if I could make my point 

on this, as well. We passed several enormous pieces of legislation 

last fall and needed to, and needed to for the security of the country and for the fight on terrorism. We passed a bill authorizing the 

Presidential action in war, which I deem to be one of the most extraordinary pieces of legislation that we can pass and deal with 

and we did that on a Friday after the September 11 attack unanimously in both Houses because we felt this country was under attack and we wanted to give the President the right to respond. It 

was an extraordinary piece of legislation, no hearings, very little 

discussion on the floor. It passed. 

We did the USA PATRIOT Act last year, a big piece of legislation, good piece of legislation to help strengthen our security. I do 

not know if it had any hearings. It had a broad set of discussion 

of people involved in it, came to the floor, passed. 

We passed $40 billion of additional appropriations. I am not sure 

what all hearings took place, very little discussion on the floor, 

passed and it went on through. One day, it was at $20 billion. The 

next day, it was at $40 billion. 

Senator BYRD. That was in the wake of a terrible, devastating attack. 

Senator BROWNBACK. Precisely my point. Precisely my point. 

Senator BYRD. But we have got time here on this bill. 

Senator BROWNBACK. We are getting to the end of the year——

Senator BYRD. We have got time. 

Senator BROWNBACK. If I could finish this one point, precisely my 

point. It was a devastating attack and it was the right thing to do, 

and you as chairman of the Appropriations Committee, I applaud 

you for getting that done at that point in time. 

39

We are members of the Immigration Subcommittee here and we 

saw and see and continue to see a hole, and we were saying at that 

point in time, sir, please let us get this passed because it is an extraordinary period of time in our country’s history. We need to be 

able to get this narrow gap and start to deal with it, and that is 

why we were pleading with you in an extraordinary manner and 

in an extraordinary time to do something that we continue to believe and deem to be necessary for this country. 

So while we can dispute the way things moved forward at that 

time, I do not think we can dispute the need for things to move 

forward at that time in a rapid fashion. The country and the world 

was calling upon us to act and we needed to act, and that is why 

so many of us implored you so heavily at that point in time to be 

able to get this legislation on through. 

I have great respect for you. I have great, deep respect for your 

position, your knowledge, your abilities, your service to this great 

country. I will never question that and I will never question you 

about any of that. But on this, we felt, as members of this subcommittee, as you as chairman of the Appropriations Committee 

felt like this was desperately needed at that point in time. 

Mr. Chairman, I would just conclude by saying that at this point 

in time, I would hope that maybe we could look at that as saying, 

okay, we had differences at that point in time. This is where we 

are now and the matter continues to need to go on through and I 

will be supportive of the funding to implement this legislation. 

Senator BYRD. Mr. Chairman, if I may respond briefly——

Chairman KENNEDY. Sure. 

Senator BYRD. That was $40 billion that was needed immediately 

following a devastating attack on our homeland and we wanted to 

give to the President whatever money he needed to deal with that 

emergency. But this bill is years away from being implemented. It 

is not going to be implemented tomorrow, and you are going to find 

that there are questions that are going to be asked about this bill. 

How do you arrive at these costs? How do you arrive at these 

deadlines? Why do you pick October 26, 2003? Why not October 27? 

Why not October 25? Why not October 21? Why October 26? There 

are other questions that I could raise. 

I am just here to point out that this committee is wise in having 

a hearing and there needs to be other hearings. This bill is going 

to be a long time being implemented. We have got lots of questions 

concerning the INS, and to pass a bill by unanimous consent in the 

time it takes to snap your finger on the Senate floor, as far-reaching as this bill is, would be a charade. It would not work. What are 

the American people going to say when they think they had something good, they thought we passed legislation to deal with border 

security, and it is full of holes, or at least has holes in it? 

That is what I was trying to save you from and the others of us 

in asking that we have debate, we have at least a chance to offer 

an amendment. And, thank God, we are going to have that chance. 

Your chairman and I have insisted on having at least an opportunity to debate and an opportunity to amend. 

Chairman KENNEDY. Senator Feinstein. 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. 

40

Senator Byrd, thank you so much for being here this morning. 

I, for one, appreciate hearing your concerns. I am one that has supported you. I am a member of your Appropriations Committee. I do 

not believe I have ever voted against an appropriation in this area, 

nor do I intend to. So as far as I am concerned, the record is pretty 

clear there. 

We have really worked very hard on this piece of legislation and 

you have heard some numbers this morning which I am sure your 

committee has. As I understand it, of the $3.1 billion total cost of 

implementation of this bill, these are INS figures. We have them 

before us. The $1.1 billion cost of this year’s figures, of the money 

that is in the Bush budget, which is $753 million, that would leave 

$188 million that we would need to come up with. 

I believe that I have been given some numbers, and you would 

be the ultimate authority on this, and your staff, but my understanding is of the $20 billion of the $40 billion that is discretionary, 

all but $327 million of it has been allocated. So there is $327 million that remains which could cover the remaining cost of this. 

I am of the view, however, that proper homeland defense is going 

to take a lot more than what is in this bill and that members have 

to be aware of that and willing to appropriate it. I think of the $10 

billion in the contingency fund in the DOD bill, some of that ought 

to go into homeland defense and I think that is just my view. 

But what I want you to know is that I will work with you in any 

way you so order to see that these funds are present. I view nothing we do as important as homeland defense. So I just want to give 

you my pledge to work with you as an appropriator to come up 

with whatever monies are necessary to carry out what we must do. 

Senator BYRD. Thank you. 

Chairman KENNEDY. Thank you very much. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman, and thank you, Senator 

Byrd, for being here to testify. I think the best thing in your statement is the fourth paragraph, which reads, ‘‘I firmly believe that 

the Senate needs to pass legislation to tighten our immigration and 

border security laws,’’ and I really do look forward to working with 

you. I have talked to you about that and I know of your commitment to do this. No one should question that. Your concerns were 

primarily procedural, and I appreciate that. 

I would like to address three or four things you said and then 

ask you to respond to them, if you would. 

First of all, you made the point—not first, but you did make the 

point that this bill is not the final answer and you are absolutely 

correct about that. We believe this is a very important first step. 

I also agree with you that it is going to take a long time to implement, at least different parts of it, but our view is we should get 

started now because of that and because we do not want anybody 

sneaking into this country in the meantime when we have not 

closed these loopholes. 

You also made the point that we all need to support the appropriations for this and I could not agree with you more. I wish you 

had been here when I made my little speech before about leading 

that effort. I have never voted against a C–J–S appropriation bill, 

to my knowledge, in either the House or the Senate. In fact, every 

41

year, I have made requests that the committee did not choose to 

fund for law enforcement operations, including at the border. 

The amendment that Senator Feinstein and I got adopted when 

I first came to the Senate for adding more border security, we 

fought for every year because frequently the administration would 

not ask for the money. We had to come to the committee, and in 

most cases your committee funded it, if not at 100 percent, at least 

to the extent that you could. 

So I think my record in supporting appropriations in this area 

is 100 percent and you have my absolute commitment to seek the 

funding because you are right. Without the funding, this cannot 

work, and I agree with you on that. 

To the point about reforming the INS before closing the loopholes, obviously, INS needs reforming, and I should not say in the 

worst way, it needs reforming in the best way. But I think we cannot afford to wait and that we can do both at the same time with 

good Congressional oversight, including from the Appropriations 

Committee. I just think we cannot afford not to do so. 

I will not go over the discussion you had with Senator 

Brownback except to say that from your own figures, my understanding is that about $14 billion of the $15 billion on top of the 

$40 billion that President Bush had agreed to was not for funding 

relating to the items in this bill and, therefore, I would hope that 

you at least agree that we could agree to disagree about the other 

$14 billion and the timing of that particular funding. 

Senator BYRD. No, I disagree with that. I disagree with it. 

Senator KYL. Well, by your own numbers, $1.1 billion of the $15 

billion you sought related to items in this legislation, which would 

mean $13.9 billion would not, and——

Senator BYRD. Senator, I also tried to keep our promise to New 

York. 

Senator KYL. Well, fine. I tried to do that, too. 

Senator BYRD. Because of the points of order that your side 

raised and you voted for, we did not have the money to keep our 

promises to New York or to deal with border security or with homeland defense. 

Senator KYL. Senator Byrd, the only point I was making here is to point out that the additional $15 billion that you sought over the 

$40 billion which the President supported, of that $15 billion, I was 

just pointing out that about $14 billion of the $15 billion did not 

have anything to do with this legislation. I just wanted to make it 

clear——

Senator BYRD. Well, it had to do with homeland security. 

Senator KYL. By your definition, that was correct. I just wanted 

to make it clear that we were not voting against—in voting against 

that $15 billion in additional expenditure, we were not voting 

against the appropriation for this legislation, which had not yet 

been passed. 

Senator BYRD. We will look at the facts again. I do not believe 

what you are saying is accurate. 

Senator KYL. Okay. We will——

Senator BYRD. You are partially accurate. 

Senator KYL. We will look at your statement. 

Senator BYRD. You are partially accurate. 

42

Senator KYL. Fine. Let me just conclude with this. It is true this 

bill did not come out of the Judiciary Committee, although we did 

have hearings both in this subcommittee and in the subcommittee 

that Senator Feinstein chairs and on which I am ranking member. 

But we felt this was an emergency and I would note that there is 

other legislation that no Senator objected to consideration that did 

not come through committee, including the legislation on the floor 

today, the energy bill. It did not come through the Energy Committee, of which I am a member. And the stimulus package——

Senator BYRD. We are not talking about the energy bill, Senator. 

Senator KYL. I understand. The stimulus package did not come 

out of the Finance Committee, of which I am a member. Two very 

important bills, they did not come out of the committee, but I did 

not raise the objection to consideration of the legislation that the 

majority leader wanted to consider because they were important 

pieces of legislation. 

Senator BYRD. Well, that is for you to do or not do. 

Senator KYL. I appreciate that. I am simply making the point, 

Senator Byrd, that a lot of times, bills do not come out of committee and there are reasons for that. We have a right to object to 

it or not object to it, but it is not something as a generic proposition 

that is either always right or always wrong. 

Senator BYRD. I did not say it was. I am not talking about generic propositions. I am talking about a specific situation. 

Senator KYL. And I appreciate the fact that there was no objection posited to the consideration of this bill starting this morning. 

We had, at least I had suggested to you that we could consider the 

bill, get a unanimous consent to consider the bill without a time 

limitation, and I understand that is what the unanimous consent 

is that we will be operating under today.

Senator BYRD. May I speak to that? 

Senator KYL. Absolutely. 

Senator BYRD. There was a very serious objection lodged to the 

bill that came over from the House. This is not that bill. Senator 

Kennedy and I have talked about this bill. I have no objection to 

taking up this bill. I said so a long time. But I think questions 

ought to be raised. I do not think you can answer the questions 

that I raised about these deadlines and about the amounts of 

money. What will this bill cost? These are questions I think we 

need to raise. As I said, I may vote for this bill in the final analysis, depending on how it looks at that point. I am not speaking 

about generics. 

Listen, Senator, I have been here 50 years. I can talk about all 

the generic approaches you want to talk about. I have seen legislation passed in many ways. I have seen many approaches. 

But on a matter of this importance, this far-reaching importance, 

on a matter that is going to cost millions, hundreds of millions, perhaps billions of dollars, we need to stop, look, and listen, ask questions, offer amendments, and then act, if we can. 

Senator KYL. And Senator Byrd, we are very pleased to have 

that opportunity starting this morning at 11:30. Take whatever 

time is necessary to discuss it. We had that opportunity on this 

exact bill last December and it was not taken. Now, with our——

43

Senator BYRD. We did not have that opportunity. I objected to 

taking up this bill last December and I have already said why. I 

do not think we have to go over that again. 

Senator KYL. I appreciate that fact. What I was saying is that 

we have the opportunity to move forward on the bill, originally 

with the unanimous consent request acceptable at the desk, and 

later we suggested let us take up the bill and have an opportunity 

to debate it. I appreciate the fact that you were not ready to do 

that at that time. 

But we can do it now and I think it is important for us to have 

whatever debate members want to have on it because it will illustrate that there are loopholes that need to be filled, that, as has 

been testified to this morning, these are pretty good provisions to 

fill those loopholes, that we need to get started on them, and it will 

also make the point that you made that it is going to require cooperation of this Congress to provide the funding for it, and those 

of us who are supporting it are going to have to commit to support 

the funding for that, as well. 

As I said before, I will commit to you to support that funding in 

order to make this work and hope that we can get started on it as 

soon as we can. And again, thank you for being here this morning. 

Chairman KENNEDY. Thank you very much. 

Senator Byrd, thanks very much for being here. I think we all 

understand your position——

Senator BYRD. Are you through with me? 

Chairman KENNEDY. I am never through with you——

[Laughter.] 

Chairman KENNEDY [continuing]. But I think you are through 

with us. We will stand in recess——

Senator BYRD. Senator. 

Chairman KENNEDY. Senator. 

Senator BYRD. I just want to put a postscript in at this hearing 

that if Senators had voted with me last December, the money 

would already be in the pipeline. The money would be in the pipeline. But funds appropriated in December, some of those funds 

have still not yet been released by the administration. 

I have been holding hearings, too. The Appropriations Committee 

has been holding hearings yesterday and the day before with respect to the budget for homeland security and we find that funds 

appropriated last December by our committee and by the Senate 

are still not being released by the administration. So that is one 

thing we might want to recall. 

I thank you, Mr. Chairman, for having this hearing and I thank 

all members for their attention and for their presence today. 

I may say to Mr. Brownback and Mr. Kyl that having been 

around here 50 years, I can put my arm around your shoulder 

when we walk out of this room. As majority leader and having 

worked in the majority leadership for 22 years on that Senate floor, 

I spoke plainly, other Senators spoke plainly, and that is the only 

way to speak. That does not mean I carry any emnity toward you 

at all. I may join with you on the next bill. I may be your best 

friend on the next bill. 

Senator BROWNBACK. I hope so. 

[Laughter.] 

44

Senator BYRD. I have found through my long experience that the 

Senator who votes against me today may be the Senator who will 

save me tomorrow. I have found that many times over the years. 

Senator Kennedy, I especially want to thank you for your courtesies, for your coming to my office, for the discussions we have had 

on this bill, and as I say, I want to support this bill although there 

are questions we still need to answer. I think some of the deadlines 

are impossible to meet and we need to know more about what the 

costs may be. It is unfortunate that we do not have the CBO’s figures and estimates and recommendations on this. But anyhow, 

thanks for a good morning and I hope you will have a good weekend. 

Chairman KENNEDY. Thank you very much. 

Senator BROWNBACK. Mr. Chairman, Senator Hatch wanted me 

to submit his statement for the record. 

Chairman KENNEDY. It will be so admitted. 

Senator BROWNBACK. Thank you. 

[The prepared statement of Senator Hatch follows:]

STATEMENT OF SENATOR ORRIN G. HATCH

Thank you, Mr. Chairman, for holding this hearing today. I also wish to thank 

both the Chairman and the Ranking Member of the Immigration Subcommittee, as 

well as Senators Kyl and Feinstein, for their hard work on the Enhanced Border 

Security and Visa Entry Reform Act. This legislation is very important and I hope 

that this hearing will take us one step closer to finally getting it passed by the Senate and sent to President Bush for a signature. 

The Enhanced Border Security and Visa Entry Reform Act makes a number of 

very common-sense reforms that will close loopholes in our immigration law, procedure, and practice that have provided terrorists access to our country in the past. 

First, it strengthens our initial lines of defense—the borders and our embassies 

abroad—by providing additional staff and training to more effectively screen visa 

applicants. Moreover, it breaks down some of the barriers that have, to date, prevented a comprehensive data sharing operation between intelligence agencies, law 

enforcement, the State Department, and the Immigration and Naturalization Service and compels the use of biometric technology to enhance our ability to confirm 

the identity of those seeking admission into our country. Finally, the bill makes 

meaningful changes to the foreign student program. In short, a student will no 

longer be able to roam about the country without the INS knowing that he or she 

is not attending school. 

So why do we so desperately need the bill? Consider that Hani Hanjour, one of 

the nineteen hijackers involved in the September 11 attacks, was stopped for speeding on August 1, 2001, in Arlington, Virginia. Mr. Hanjour earlier entered the 

United States on a student visa, but had never attended even a single class, thus 

violating the terms of his status and thereby making him deportable from the 

United States. Had the data-sharing operation compelled by the Enhanced Border 

Security bill been in effect at the time of his traffic violation, local law enforcement 

would have been notified of his unlawful presence in the United States and would 

have taken him into custody. He would have, then, been in similar circumstances 

to Zacarias Moussaoui, the believed twentieth hijacker, who was detained at an INS 

facility in Minnesota at the time of the attacks. Certainly the brave souls aboard 

Flight 93 that crashed in rural Pennsylvania or, indeed, any of the other victims 

aboard any of the other planes would have welcomed the absence of another of 

Osama Bin Laden’s agents of hell. 

Also, consider the events of this a few weeks ago when the INS improperly admitted 27 crew members of a vessel for shore leave. Four of the individuals, all Pakistani, never returned. It has since been discovered that because an INS inspector 

entered an improper birth date for one of the four men, the man was permitted to 

enter the United States notwithstanding an earlier immigration violation in Chicago. Again, had the provisions of the Enhanced Border Security bill been in effect, 

that man would have never been able to enter the United States. Specifically, the 

retrieval of his records would not have been contingent solely upon the entering of 

his actual birth date but, rather, any number of variations of his name. His prior 

immigration violation would have likely been discovered and the man would have 

45

been denied entry. No one knows whether his intentions in hiding out in our country are evil, but we must now wonder and do our best to track him down. 

This should not be a controversial bill. The Enhanced Border Security and Visa 

Entry Reform Act enjoys the broad, bipartisan support of nearly 60 senators. The 

House of Representatives has passed it twice and the Bush Administration is supportive as well. It does not make sense that a bill designed to make such critical 

improvements and with this kind of support could have languished for so long in 

the Senate. While I recognize the right of every Senator to contribute to, further 

investigate, and even oppose any legislation, I cannot help feeling frustrated when 

a bill of this magnitude is held up for over three months with almost no comment 

or justification. In cosponsors alone, this bill has almost enough support to defeat 

a filibuster, and yet, Senate leadership has failed—to this point—to put it to the 

floor for a vote. I am very pleased that the Border Security bill has finally been 

placed on the schedule and will be debated later today. Clearly, the time has come 

for the Enhanced Border Security and Visa Entry Reform Act to be passed by the 

Senate without further delay. 

Thank you again, Mr. Chairman, for holding this hearing. I am confident that you 

will continue to work toward passage of this legislation and I look forward to working with you and the other sponsors in this endeavor.

Chairman KENNEDY. I would like to submit the statement of 

Senator Leahy for the record. 

[The prepared statement of Senator Leahy follows:]

STATEMENT OF SENATOR PATRICK LEAHY, CHAIRMAN, SENATE JUDICIARY COMMITTEE

I applaud Senator Kennedy for holding this hearing today, and for his work with 

Senators Feinstein, Brownback, and Kyl in developing and introducing S. 1749, the 

Enhanced Border Security and Visa Entry Reform Act. I am one of 58 proud cosponsors of that bill, which has commanded extraordinary bipartisan support and the 

sponsorship of most of the members of the Judiciary Committee. I am pleased that 

the House has already passed H.R. 3525, which is modeled on S. 1749, and that 

the Senate will be taking up border security legislation today. 

As a Senator from Vermont, I know what a serious issue border security is. For 

too long, Congress has taken a haphazard approach to border security, meeting 

many of the needs of our southwest border but neglecting our border with Canada. 

Since the terrorist attacks of September 11, we have taken a far more comprehensive approach. Congress took its first steps to strengthen our borders in the USA 

Patriot Act, which authorized tripling the number of Border Patrol personnel, INS 

Inspectors, and Customs Service agents serving along our northern border, and $100 

million in funding for improved technology for the INS and Customs Service’s use 

in monitoring the border. As the author of those provisions, I am pleased that the 

Administration has requested substantial increases in funding for border security 

personnel. I urge the Congress not only to support those requests, but to ensure that 

the northern border receives at least half of any new supply of border security enforcement officers. 

The legislation before us today builds on the first steps taken in the USA Patriot 

Act to strengthen substantially the security of our borders. It will further increase 

the number of INS Inspectors and INS investigative personnel, and authorize raises 

for Border Patrol agents and inspectors so that we can retain our experienced border security officers, who have been so overworked over the past seven months. The 

bill also authorizes funding for training of INS personnel for more effective border 

management, and for improving the State Department’s review of visa applicants 

abroad. In addition, it authorizes $150 million for the INS to improve technology 

for border security, another important follow-up to the USA Patriot Act. 

Beyond authorizing badly needed funding for our borders, this legislation includes 

a number of important security provisions, a few of which I would like to highlight 

today. First, it requires the Attorney General and Secretary of State to issue only 

machine-readable and tamper-resistant visas, and travel and entry documents using 

biometric identifiers, by Oct. 26, 2003. They must also have machines that can read 

the documents at all ports of entry by that date. Second, the bill requires the Secretary of State to establish terrorist lookout committees within each U.S. mission 

abroad, to ensure that consular officials receive updated information on known or 

potential terrorists in the nation where they are stationed. Third, the bill will foster 

information sharing between other government agencies and the State Department 

and INS, and shorten the deadline established in the USA Patriot Act to develop 

a technology standard to identify visa applicants. Fourth, the legislation requires all 

commercial vessels or aircraft entering or departing from the United States to proVerDate Jan 31 2003 23:01 Apr 08, 2003 Jkt 085885 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 E:\HR\OC\B885.XXX B885
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vide complete passenger manifests. Fifth, this bill would substantially strengthen 

existing law for the monitoring of foreign students. The government would be required to collect additional information about student visa applicants, and educational institutions would be obligated to report visa holders who did not appear 

for classes. In addition, the INS Commissioner would perform periodic audits of educational institutions entitled to accept foreign students. 

I hope that this hearing will clarify any concerns Senators may have about border 

security legislation, as passage of this bill would show that the protection of our nation and our borders remains a fundamental priority for this Congress.

Chairman KENNEDY. Statements of other Senators will be included, as well. 

The committee stands in recess. Thank you. 

[Whereupon, at 10:42 a.m., the subcommittee was adjourned.] 

[Submissions for the record follow:]

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